06.28.12 2:00 AM ET
Waiting for the Supremes
For the last five months, I’ve been on leave from blogging. Whatever the financial and emotional strains, I’m terrifically grateful to have missed the back and forth over what the Supreme Court is going to do on health care. Thus, I have not had to churn out approximately one squillion blog posts on how We Don’t Really Know What the Supreme Court is Going to Rule, or What It Will Mean for American Democracy if the Supreme Court Overturns ObamaCare, or Why People Who Disagree With Me About the Constitutionality of the Mandate Are Traitorous Sacks of Pig Vomit Who are Destroying Our Country, and My Sleep.
To be honest, however, I have not been able to resist reading all those posts on other blogs. So just ahead of the tape, here goes with my condensed thoughts on the matter:
1) We don’t really know what the Supreme Court is going to rule tomorrow. We can stare deep, deep into the tea leaves—the side that does badly at oral argument usually loses! Scalia and Alito issued angry dissents on Monday and were they maybe angry about... losing the health care decision?
But I treat these prognostications the way I treated those of the nice lady at the Wyoming State Fair who told me that I’d be rich and have eight children: a fun way to pass the time, but ultimately pointless.
I have no idea what’s going to happen tomorrow. I am trying hard not to worry about it.
2) What it will Mean for American Democracy if the mandate is overturned is... very little. A lot of progressives are going to be really mad. They’re going to be mad in almost exactly the same way that a lot of conservatives are mad about Roe v. Wade... which is, I must point out, exactly the reason that conservative politicians have worked so hard to appoint conservative justices. Those progressives did not seem to think that American Democracy had been destroyed because some unelected justices had overturned duly enacted laws in 1973. For that matter, they didn’t seem to think so when the Supremes did it on Monday, in a ruling announcing that states couldn’t mandate the death penalty for juveniles.
Roe was, one might add, a ruling far more sweeping than even striking down all of PPACA would be. Roe put a thorny social question mostly out of reach of the legislative process. The most the Supreme Court will do tomorrow is say “you can’t do a government health care program this particular way”, while leaving our many existing federal health care programs 100% intact.
Though I am pro-choice, I am not a fan of Roe, which I think was legally dubious and tactically unwise. But democracies are complicated things. No matter how much it feels like it to you, democracy doesn’t wither and die because the Supreme Court won’t let politicians enact some laws you like. It didn’t in 1973 and it won’t now.
Particularly ridiculous are the dark insinuations of popular revolt against an activist court which one hears from some corners. A small number of politically active progressives may lose some trust in the court, but overall, it’s not going to have much effect on American public opinion, because a majority of Americans think that the mandate, at least, is unconstitutional. In fact, a majority of Americans who support the health care law think it’s unconstitutional.
Personally, I suspect that progressives will stop attacking the court pretty soon. I have been much amused watching people try to simultaneously defend the fruits of Franklin Delano Roosevelt’s outrageous court-bullying, while also indignantly claiming that it would be abusive, infamous, fundamentally illegitimate and also, downright mean, for conservative justices to even think about overturning long-standing precedent. Suddenly, the internet is full of Latter Day Originalists who think that the constitution was handed down by God on stone tablets—in January 1936.
Since the argument that justices aren’t allowed to overturn laws passed by the legislature, or that they aren’t allowed to overturn long-standing precedent, or that 5-4 decisions aren’t legitimate, would undercut a vast body of laws liberals love—from Miranda to Roe to Boumediene—I tend to think they’ll give up on this line fairly quickly. Especially since going on the attack means spending even more valuable pre-election airspace saying “Hey, voters! Remember that health care law that we passed even though you hated it? The one you still don’t like? Well, I just wanted to remind you that it was also unconstitutional, according to the Supreme Court!”
On the other hand, I consistently underestimate both the hypocrisy, and the political stupidity, of politicians and political activists.
3) As to to the traitorous sacks of pig vomit... what about Bush v. Gore, I hear you cry? Did it not allow the justices to appoint a president who appointed their successors?
You need a really long string of counterfactuals to get there. First, the recounts that the Supreme Court stopped would have gone for Bush, as a media consortium that actually tallied them up found. And second, Bush didn’t appoint anyone in his first term.
So you need a scenario in which the Supreme Court lets the counts go forward, but only in the specific way that would have delivered the election for Gore.
(This method—statewide recount including overvotes—that neither Bush nor Gore was asking for. As far as I know, the best supporters of this theory have been able to get is local officials saying that they would have been open to doing the recounts that way—not that they would have. With no one requesting such a recount, I’m dubious.)
Not only that, it has to be a scenario in which Al Gore did two terms in office—not necessarily all that likely, as people tend to get sick of a party that’s held the presidency for twelve years.
I certainly understand if you didn’t like Bush v. Gore. The problem is, Republicans would not have liked it if an all-Democratic Florida Supreme Court had been allowed, in their view, to put its thumb on the scales for Gore. Since we didn’t have a set of Spock-like aliens without political and ideological sympathies to whom we could refer the question, someone was going to be very, very unhappy. But again, this is well short of a coup, and there’s little evidence that it has much eroded either American democracy, or the public trust. Opinions on the rightness of Bush v. Gore are still about 100% correlated with one’s partisan preferences, except for the vast majority of people who have forgotten all about it. As Adam Smith noted, there’s a lot of ruin in a nation.
You know who’s doing the most damage to American Democracy right now? People arguing that we can’t have real American democracy unless the Supreme Court agrees with me.
I will obviously be disappointed if the law is upheld. This is slightly ironic because I’m probably uninsurable in the private market—insurers don’t like hearing the words “autoimmune disease”—and so the odds are that I, personally would be better off if the Supreme Court votes to uphold. I spent years being uninsured with an autoimmune disease (a relatively benign one, thank God), and I’d rather not do it again.
But whatever my personal benefit, I think that my country would be worse off. Two years after it passed, I’m still fairly well convinced that ObamaCare is a vast Rube Goldberg contraption that will undercut health care innovation while making the government’s finances much more parlous. So far, the law has produced a lot of nasty fiscal surprises as various revenue-raising components turned out to be completely unworkable. The only “upside surprise” I can think of is the unsurprising revelation that if you force insurers to cover children up to the age of 26, more people under the age of 26 will have health insurance, at some increase in premium costs. It’s hard to support such an obviously damaged program even though there’s some chance I will personally benefit from it.
But if the Supreme Court votes to uphold, America will still be here. Flowers will still bloom, people will still fall in love, and yes, Americans will still wend their ways to the polls to select the tallest, best-looking, best-pandering politicians to lead them. It’s less than ideal, of course. But what isn’t?