This item by TDS Co-Editor William Galston is cross-posted from The New Republic.
In the weeks preceding the Obamacare case, many veteran Supreme Court-watchers could not bring themselves to believe that a majority of the justices would find the individual health insurance mandate unconstitutional. But now that the oral argument is over, the consensus has abruptly shifted, with increased focus on the supposedly ironclad opposition between the five “conservative” justices and the four “liberals.”
Indeed, as commentators consider what kind of decision the Court will hand down in June, they have been increasingly tempted to apply a simple “it’s all politics” template: Liberal justice will favor the individual mandate, conservatives will oppose it, case closed. But that’s hardly ever the right way to look at the Court, and it’s certainly wrong now.
In the first place, the general assumptions that individual justices bring to particular cases are typically jurisprudential rather than straightforwardly political. Some have broad and well-developed views about how the constitution should be read and interpreted. (On the current court, Antonin Scalia, Clarence Thomas, and Stephen Breyer are the best examples.) Others have firm views about the appropriate role of the Court in the constitutional process: Felix Frankfurter famously counseled restraint and maximum feasible deference to legislative decisions, while Earl Warren believed that it was the Court’s responsibility to defend individual rights–against popular and legislative majorities if necessary.
Second, there’s no single model of conservative jurisprudence–or of liberal jurisprudence, for that matter. For example, press coverage often treats Thomas and Scalia as twins. But they aren’t. Thomas is much more willing than Scalia to overrule prior constitutional decisions even when they are venerable and entrenched. In jurisprudential language: Scalia incorporates stare decisis into his decision-making calculus, while Thomas believes that if a constitutional case was wrongly decided a century ago, its age shouldn’t tip the scales against reversal.
Third, justices have different dominant concerns. For Anthony Kennedy, it’s individual liberty, an issue to which he returned repeatedly as he grilled Solicitor General Donald Verrilli on Tuesday. Early in that day’s proceeding he asked, “When you are changing the relation of the individual to the government in this … unique way, do you not have a heavy burden of justification to show authorization under the Constitution?” Later on he expressed his worry that the individual mandate “changes the relationship of the federal government to the individual in a very fundamental way.” By contrast, Justice Scalia and Chief Justice Roberts appeared more concerned about the distinction between the federal government’s enumerated powers under the Constitution as contrasted with the broader police power of the states. (That said, all the conservative-leaning justices seemed to take seriously the distinction between regulating commerce and forcing individuals to enter commerce, and they seemed uniformly concerned that the government had failed to establish principled limits to the scope of the Commerce Clause.)
Indeed, arguments in the Supreme Court take place against a historical backdrop–not only the Court’s history but also that of individual justices. When the justices enter the conference room to vote on current cases, they bring their past decisions along with them. For example, in his concurring opinion in Gonzales v. Raich, Scalia offered a broad interpretation of how the Commerce Clause and the Necessary and Proper Clause work together to authorize federal government regulation to activities that affect interstate commerce, even when those activities are not themselves part of interstate commerce. Many seasoned Court-watchers believed that Scalia would have a hard time squaring that opinion with a vote against the constitutionality of the individual mandate. But on Tuesday, Scalia argued, as he has before, that the two adjectives in the Necessary and Proper Clause impose separate and distinct tests: A particular means to an end may be necessary without being proper, especially if it runs into a wall of constitutional prohibition. The forcefulness with which Scalia made this distinction showed that he was acutely aware of the implications of his own judicial record on these matters.
It’s also important to point out that there’s no necessary correspondence between jurisprudential and political views. For example, Antonin Scalia is a staunch Catholic, so one might expect him to favor constitutional doctrines that mandate broad accommodation of religious liberty. But just the reverse is true: Scalia authored the majority decision in Employment Division v. Smith, widely regarded as the most anti-accommodationist case in decades. That decision made it clear that Scalia fears anarchy much more than tyranny. For more libertarian conservatives, such as Anthony Kennedy, the reverse is the case–hence his majority decision in Lawrence v. Texas, which struck down a Texas law criminalizing sodomy and was couched in high-minded prose that Scalia has since attacked and mocked mercilessly
TDS readers might be interested in my virtual debate with Walter Shapiro on media coverage of the GOP presidential nominating race. Shapiro, arguing that the chattering classes were prematurely calling the race for Romney, wrote here. I responded here.
And Jonathan Bernstein of WaPo’s Post-Partisan summed it up here:
Kilgore is exactly right, on two counts. The first is the state of the contest. Looking at delegates isn’t enough. Shapiro writes that nothing changed after Illinois, but that’s not really true. For one thing, while Romney was the favorite in that primary, there’s still a big difference in that he actually did sweep that state and reap a large delegate bounty (indeed, Shapiro seems to be ignoring that Romney also won big in Puerto Rice just before Illinois, which further nailed down his large delegate lead). Each time the front-runner wins, even when he’s favored, it makes it that much less likely he can be overcome. Also changed since Illinois, as Kilgore notes, are key endorsements heading Romney’s way. Those hurt Santorum severely; he desperately needed resources to remain competitive, and it’s increasingly clear he’s not going to generate any.
Alan I. Abramowitz, senior columnist for Larry J. Sabato’s Crystal Ball and member of the TDS advisory board, unpacks a forecasting model he used to successfully predict congressional takeovers in 2010 and 2006, plugs in some numbers and offers this perspective for 2012:
After estimating the models based on the results of all House and Senate elections since the end of World War II, the forecasting equations for the 2012 House and Senate elections are as follows:
CRHS = (1.35*GENBALLOT) + (.21*PRESAPP) – (.36*PRHS) – (19.6*MIDTERM) + 86.1
CRSS = (.18*GENBALLOT) + (.05*PRESAPP) – (.81*PRSS) – (2.9*MIDTERM) + 14.8,
Where CRHS is change in Republican House seats, CRSS is change in Republican Senate seats, GENBALLOT is the average current Republican margin on the generic congressional ballot, PRESAPP is net presidential approval coded according to the party of the president, PRHS is previous Republican House seats, PRSS is previous Republican Senate seats, and MIDTERM is a variable distinguishing Republican and Democratic midterm elections from presidential elections that is coded +1 for midterms under a Republican president, 0 for presidential elections and -1 for midterms under a Democratic president.
Sabato cautions that this model “considerably more accurate for House elections than for Senate elections.” based on the most recently-available figures. Abramowitz says “the House forecasting model predicts a very small Democratic seat gain (2-3 seats) in the House but not nearly the 25 seats Democrats would need to take back control of the House.”
As for the Senate, he gives the GOP “a good chance to regain control of the Senate with an expected pickup of 6-7 seats…due almost entirely to the fact that Republicans are defending only 10 Senate seats this year while Democrats are defending 23 seats.”
Yes, Abramowitz acknowledges it’s still early and the prez approval variables could change in Dems’ favor. At this political moment, however, it looks like Dems’ best chance to prevent a GOP takeover of congress may come down to investing some of that Obama war chest in a couple of pivotal senate races.
Generally speaking, there’s two ways to handle wingnut goon squad bullying tactics: 1. the usual way (shouting matches, complaining, legal action that often goes nowhere etc.) and 2. The calm, creative way.
WaPo’s Petula Dvorak has an inspiring report on one of the latter approaches in her post “A clinic’s landlord turns the tables on anti-abortion protesters.” Dvorak explains how Todd Stave, a landlord for an abortion doctor’s office responded to a pro-life protesters showing up at his daughter’s middle school with grotesque signage, then “harassing calls from protesters started coming to his home. By the dozens, at all hours.” the landlord was no pushover, however, since his family had experienced violence from anti-abortion groups, going back to his childhood, including a bombing. Here’s how he handled it:
Friends asked him how they could help. He began to take the names and phone numbers down of anyone who contacted him with an unwanted call. And he gave those lists to his friends and asked them to call these folks back.
“In a very calm, very respectful voice, they said that the Stave family thanks you for your prayers,” he said. “They cannot terminate the lease, and they do not want to. They support women’s rights.”
This started with a dozen or so friends, then grew. Soon, there were more than a thousand volunteers dialing…If they could find the information, Stave’s callers would even ask the family how their children were doing, and mention their names and the name of their school. “And then we’d tell them that we bless their home on such and such street,” giving them their address.
In some cases, the family of a protester who called Stave’s home could get up to 5,000 calls in return.
The supporters came so fast and in such big numbers, Stave founded a group, Voice for Choice . And now there are about 3,000 volunteers ready to make calm, reasoned calls to the homes of people who bombard doctors, landlords and families with their unsolicited protests at homes or schools across the country.
Such is the power of calm, creative response to bullying from the right. Dvorak does believe that pro-lifers could be more effective in terms of preventing abortions, and offers a couple of interesting suggestions;
People who want to stop abortion can make a difference with education, support, counseling and genuine efforts to prevent unwanted pregnancies and support childrearing…They need to be working toward affordable and safe childcare for all, solid healthcare for children and generous workplace policies and family leave so that parenthood is not an onerous and difficult prospect in America.
Now that would be the real beginning of a pro-child society.
…Prominent civic organizations have suspended registration drives because of what they describe as onerous restrictions imposed last year by Republican state officials.
The state’s new elections law — which requires groups that register voters to turn in completed forms within 48 hours or risk fines, among other things — has led the state’s League of Women Voters to halt its efforts this year. Rock the Vote, a national organization that encourages young people to vote, began an effort last week to register high school students around the nation — but not in Florida, over fears that teachers could face fines. And on college campuses, the once-ubiquitous folding tables piled high with voter registration forms are now a rarer sight.
…In the months since its new law took effect in July, 81,471 fewer Floridians have registered to vote than during the same period before the 2008 presidential election, according to an analysis of registration data by The New York Times. All told, there are 11.3 million voters registered in the state.
…new registrations dropped sharply in some areas where the voting-age population has been growing, the analysis found, including Miami-Dade County, where they fell by 39 percent, and Orange County, where they fell by a little more than a fifth. Some local elections officials said that the lack of registration drives by outside groups has been a factor in the decline.
More than a dozen states have passed laws making it harder to vote in recent years. Many of the laws require photo identification, restrict groups that register voters and cut back on early voting. In Florida, civic groups in counties covered by the Voting Rights Act are filing court challenges.
The authors describe the Florida law as “among the strictest in the nation and “similar to one New Mexico passed in 2005, which also imposes penalties for failing to meet a 48-hour deadline for handing in forms.” Unfortunately civic group court challenges failed in New Mexico and voter registration rolls have been shortened. In Florida, however, the Brennan Center for Justice is “challenging the Florida law on First Amendment grounds, arguing that speaking to voters and registering them is protected speech.”
If Super-PACs are protected by the First Amendment and citizens who register voters are not, then America is in trouble, and voters should hold the GOP accountable in November.
NYT Conservative pundit Douthat wonders “Could Defeat in Court Help Obama Win?,” but adds “The safest bet is still that it won’t come to this – that the high court (or at least Kennedy, our current swing vote-cum-philosopher king) will take the most politically cautious, precedent-conscious course, and uphold the health care bill in its current form…If so, it will be hailed as a big win for the administration. But the White House might actually reap more political dividends from defeat.”
In light of Douthat’s more sober assessment, this Monitor headline seems like an over-the-top downer: “Supreme Court justices appear poised to sweep aside entire health-care law.” Maybe Toobin, Richey and other doomsayers should just calm down a tad and remember that the High Court’s job is to ask tough, skeptical questions, and there is ample time left before the anticipated June ruling for serious reflection and maybe even some (gasp) soul-searching.
But it would be good if Justices Kennedy and Roberts read and ponder this lede from a new Reuters/Ipsos poll report conducted online March 23-28: “An overhaul of the U.S. healthcare system remains popular even though Americans are not enamored with the law that President Barack Obama signed in 2010, …The poll found that 44 percent of respondents favor the law, and that an additional 21 percent oppose it because it doesn’t go far enough – for a total of 65 percent.”
In his “Stealing Christianity” post at Washington Monthly’s Political Animal blog, Ed Kilgore says what many are no doubt thinking. From the nut graph: “…A lot of media types simply don’t know much about religion, which they find faintly ridiculous and embarrassing. And since it’s all, in their view, a shuck, they are inclined to find its most forcefully conservative practitioners to be the most “authentic.”…This is precisely the same ignorance compounded by ill will that leads a lot of gentiles to treat visibly orthodox Jews as the only “real Jews.”
At The Fix, WaPo’s Aaron Blake takes a mildly hopeful (for Dems) look at a couple of “second tier” Democratic targets — the seat of embattled Sen. Richard Lugar (R-IN) and the open seat in AZ, where Kyl is retiring.
Here’s Three encouraging bellwether state snapshots for the President.
Eric Pianin of The Fiscal Times has a thoughtful, balanced analysis in his article, “House Call: Democrats Need A ‘Wave’ to Reclaim Seats.” Among the arguments for a wave cited by Pianin: “More than 70 percent of Americans disapprove of the performance by congressional Republicans, according to a recent Washington Post-ABC News poll.”
GOP veepstakes buzz increases about conservative NM Gov. Susana Martinez, to shore up Romney’s alarmingly low approvals/favorables among women and Hispanic voters. As the WaPo bio notes, Martinez last election was bankrolled in part by “Texas couple Robert and Doylene Perry, who helped fund the 2004 Swift Boat campaign against 2004 Democratic presidential nominee Sen. John Kerry (D-Mass.). Martinez has also received hundreds of thousands of dollars worth of campaign contributions from gas and oil producers.”
Dems gotta love Kenneth P. Vogel’s Politico post, “GOP faces digital divide,” which says: “President Barack Obama and his Democratic allies have opened up a big advantage over Republicans when it comes to high-tech voter targeting ” and “mobilizing volunteers, donors and voters.” Vogel adds “One of the Obama campaign’s big advancements this cycle has been to figure out how to link voters across multiple databases.” However, Republicans are investing heavily in closing the gap, and as one expert dryly notes in Vogel’s post, Dems’ high tech edge didn’t help much in 2010.
In an excellent update on the battle to win women voters, AP’s Laurie Kellman summarizes what’s at stake: “…Exit polls show that women are a majority of voters in presidential election years and about four in 10 female voters don’t have a spouse. They lean more heavily Democratic than their married counterparts. But the U.S. census says about 22 percent of them are unregistered, a rich pool of potential new voters for both parties competing for the presidency and the majorities in Congress…As much as 75 percent of single women vote for Democrats, so registering them to vote en masse is more beneficial for Democrats than Republicans.”
The New York Times editorial “Where Are the Good-Government Republicans?” commends Sen. John McCain for his comment that the Citizens United decision is “naïve and politically ignorant,”” and will probably produce “a huge scandal” before long. The editorial has a worthy challenge for Sen. McCain:
Democrats in Congress are pushing for disclosure, but, so far, there isn’t a Republican co-sponsor in sight. A measure from Senate Democrats would require timely disclosure by self-proclaimed independent groups that spend $10,000 or more on election ads, including the names of their major donors and a personal “I approved this ad” tag on television by the group’s chief executive. The group would have to certify that it is not “coordinating” with the candidate it obviously champions — an attempt to plug the rampant abuse of campaign law by “super PACs” and other hypocritical spenders. Democrats in the House have a similar worthy measure.
Republicans once identified with good government have an opportunity right now to reach across the aisle — before that scandal breaks. Senator McCain?
Doesn’t seem like a lot to ask…for a real maverick.
At his Washington Monthly blog, TDS managing editor Ed Kilgore posts on “The ‘What Then’ Debate.” Kilgore mines some salient insights from President Clinton’s campaign manager, James Carville and Bush speechwriter David Frum about what could happen if the SOTU bashes the ACA. First, Carville:
I think this will be the best thing that has ever happened to the Democratic Party…Then the Republican Party will own the healthcare system for the foreseeable future. And I really believe that. That is not spin
Frum thinks the GOP may want to chill the celebrations for a bit:
Repeal” may excite a Republican primary electorate that doesn’t need to worry about health insurance because it’s overwhelmingly over 65 and happily enjoying its government-mandated and taxpayer-subsidized single-payer Medicare system. But the general-election electorate doesn’t have the benefit of government medicine. It relies on the collapsing system of employer-directed care. It’s frightened, and it wants answers.
Kilgore adds that there is not much reason to think that Republicans are prepared to fill the void with credible proposals
Sure, Republicans have their highly misleading pet rock proposals to hold down premiums–interstate insurance sales and “tort reform”–and a shriveled booby prize of an approach to extend health insurance to people who are routinely denied coverage–state-run “high-risk pools” that typically offer crappy coverage at astronomical rates. But all the focus on ObamaCare since 2009 has obscured the fact that most people who are not on Medicare pretty much do hate the health care status quo ante, and will expect both parties to propose new reforms.
In short, what the Supremes are now mulling over is a potential minefield of unintended consequences, some of which could boomerang badly on the GOP.
Time was, not long ago, when the right wing railed against the overreach of unelected judges with lifetime appointments who tried to usurp the power of Congress and impose their own vision of society.
That was before the Roberts Court. In fact, it turns out, many extreme conservatives didn’t give a rat’s left foot about the overreach of unelected judges. They simply wanted judges who would impose their vision of society on the rest of us.
Justices Roberts and Kennedy will likely be the deciding votes on the question of whether the individual responsibility provision of the Affordable Care Act passes constitutional muster. But they will also decide whether the Roberts Court goes down as the most activist, partisan court in modern history.
Up to now the Court’s decision in the Citizens United case allowing corporations and billionaires to make virtually unlimited contributions to political candidates and “Super Pacs” stood out as its most glaring beacon of judicial activism. Citizens United reversed a century of legal precedent to reach a result that gives corporations the political rights of people, and distributes the right of free political expression in proportion to one’s control of wealth. Not exactly what Thomas Jefferson had in mind.
It was, of course, exactly what the far Right had in mind. Extreme conservative voices found themselves strangely silent in the face of the Supreme Court’s willingness to substitute its judgment for that of elected Members of Congress and to upend the bi-partisan McCain-Feingold law that had been passed to regulate federal elections.
But if the Court rejects the individual responsibility provisions in the Affordable Care Act, that will take the cake.
In fact, when Congress passed Obamacare there were very few serious constitutional scholars who questioned the constitutionality of this provision.
There is no question whatsoever, that government in America has the right to require our citizens to pay for public goods or for services that we decide can best be provided through government.
Clearly, government can tax homeowners to provide the community with fire protection, for example. You might not need fire protection for years — or decades — or ever — but government can decide that you have to pay into the fire protection district because if your house catches fire, it could affect the entire community.
But, says the right wing, government can’t require an individual to purchase a product from a private company they may not want or “need.”
Now I personally believe that it would make much more sense to expand Medicare to all Americans, and maintain one, efficient government-run insurance system that covers everyone — and cuts out the need to pay huge profits to Wall Street and the big bonuses to insurance company CEO’s.
Robert Reich’s blog, “Health Care Jujitsu” at HuffPo Politics presents a plausible “plan B’ if the ACA’s individual mandate is invalidated by the Supremes. As Reich explains it:
…If the Court decides the individual mandate is an unconstitutional extension of federal authority, the entire law starts unraveling. But with a bit of political jujitsu, the president could turn any such defeat into a victory for a single-payer healthcare system — Medicare for all.
…You’ll remember the Administration couldn’t get the votes for a single-payer system such as Medicare for all. It hardly tried. Not a single Republican would even agree to a bill giving Americans the option of buying into it
….Americans don’t mind mandates in the form of payroll taxes for Social Security or Medicare. In fact, both programs are so popular even conservative Republicans were heard to shout “don’t take away my Medicare!” at rallies opposed to the new health care law.
…Moreover, compared to private insurance, Medicare is a great deal. Its administrative costs are only around 3 percent, while the administrative costs of private insurers eat up 30 to 40 percent of premiums. Medicare’s costs are even below the 5 percent to 10 percent administrative costs borne by large companies that self-insure, and under the 11 percent costs of private plans under Medicare Advantage, the current private-insurance option under Medicare.
…If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.
When this happens, Obama and the Democrats should say they’re willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes. If they did this the public will be behind them — as will the Supreme Court.
Reich’s solution may seem simplistic — that’s sort of built into the nature of the single-payer alternative. But the simplicity of the proposal could work to the Democrats advantage. Simplicity is often an easier sell than a complex, multifaceted legislative package, particularly when the public is fed up.
Left Dems will be angry, energized and ready to seize the opportunity to fight for the public option. Many moderate Dems may be ready for the public option, when it finally becomes clear that even the Republican-controlled Supreme Court won’t allow a compromise supported by insurance companies and the responsible segment of the private sector.
It’s a risky strategy, electorally, considering the public was weary of the debate long ago. And, there are other possible compromises short of an all-out battle for the public option, including an “opt-out” provision some have suggested, allowing consumers to chose staying out of the law’s coverage for a minimum of 5 years. Another alternative would be a public option for catastrophic coverage only, guaranteeing, at least, that no one will lose their home or retirement assets to pay medical bills, allowing the insurance companies to compete for all other coverage short of catastrophic illnesses.
Regardless of the ‘Plan B’ Dems chose, however, it should be abundantly clear that rubber-stamping conservative Supreme Court nominees is a luxury we can no longer afford.
It’s not an especially novel observation to note that the future shape of the Supreme Court is at stake in this presidential election. But more specifically, the long-time control of SCOTUS by Republican nominees could be coming to an end, a possibility I examined at New York.
[T]rue domination of the Supreme Court by one party or ideology takes time, and usually consecutive presidencies of the same party. A Clinton presidency following an Obama presidency could do the trick.
That would be a really unusual opportunity for the Donkey Party, which has not had more than eight consecutive years of controlling the White House since Harry Truman left office. Republicans have had vastly better luck in securing SCOTUS nominations. Indeed, because Jimmy Carter did not have a single SCOTUS vacancy to fill, Republican presidents appointed an astonishing ten consecutive justices between 1969 and 1991. The only reason this did not produce a profoundly conservative SCOTUS era is (as any conservative, and especially Christian conservative, will tell you) that multiple Republican-appointed justices turned out to be relatively liberal on certain issues (notably abortion) or liberal altogether (e.g., John Paul Stevens and David Souter).
As Dylan Matthews explains at Vox, a second President Clinton (especially if she won a second term) would have a good shot at creating the first unambiguously liberal Court since 1971, and perhaps a 6-3 liberal majority on SCOTUS in fairly short order. Aside from stopping a conservative trend on the Court in areas ranging from campaign-finance reform to business regulation to labor law, such a development could lead to progressive constitutional landmarks unimagined for decades, such as prohibitions on mass incarceration and establishment of a truly national right to vote without state and local obstruction and harassment.
It is theoretically possible, of course, that Clinton appointments could disappoint liberals the way Nixon and Ford and Reagan appointments have disappointed conservatives. But probably not: The brouhaha over “treacherous” Republican justices has made it vastly more acceptable to vet potential nominees carefully for their past record and their judicial philosophy. There may be some doubt about what Donald Trump will do in the way of shaping the Supreme Court in a coherent manner. But Hillary Clinton’s direction in judicial appointments should be clear enough, and will probably motivate an unprecedented degree of conservative resistance in the Senate and beyond.
If we are lucky, conservative resistance to progressive SCOTUS nominees will be a worst-case scenario for Democrats.