Posts Tagged ‘Dahlia Lithwick’

Greenhouse Effect Strikes Again?

Saturday, July 7th, 2012

Love this story about how Chief Justice Roberts initially voted with the conservative majority to overturn the individual mandate, if not the entire ACA, but that he eventually changed his vote, siding with the liberal Justices to uphold the core of the law.

This was insult to injury for seething Republicans, already smarting from the decision itself, to know that they came so close to victory, but couldn’t seal the deal. For many Republicans, this was another in a series of disapointments, going back to the Reagan-Bush Era when Republicans expected Supreme Courts packed with their appointees to consistently vote to enact the conservative agenda.

Republicans have dubbed the tendency of Republican appointed Justices to shift their opinions to the left as they spent more years on the bench, ”The Greenhouse Effect” named for Supreme Court Reporter Linda Greenhouse, but a shift to the Left for Justice Roberts seems very unlikely. In fact, this decision is in keeping with the promises Justice Roberts made during his confirmation hearing when he said that a Judge’s role was to be a neutral umpire, calling balls and strikes, applying the rules, not creating them, as well as his focus on the legitimacy of the Court throughout history.

Despite the Republican rage, we should be under no illusions that Justice Roberts is undergoing some sort of leftward drift. After all, this is the activist court that brought us Citizens United as well as many other cases that are fundamentally re-writing the rules to benefit the powerful at the expense of those without. In the days before the Supreme Court Arguments in this case, I linked to an article by Dahlia Lithwick in which she argued that Chief Roberts would write an opinion upholding the ACA

And then—having been hailed as the John Marshall of the 21st century—he will proceed to oversee two (decades) during which the remainder of the Warren Court revolution will be sent through the wood chipper.

Unfortunately, I suspect that we will look back at history in 20 years and see that she was exactly right.

Obamacare Supreme Court Primer

Tuesday, March 27th, 2012

Here’s Ezra Klein and Sarah Kliff with everything you need to know about health care reform’s Supreme Court debut.

They provide some good links to analysis of the case. It looks as though most scholars seem to agree that, whether you like the individual mandate or not, there is a ton of Supreme Court precedent that supports the ability of Congress to enact a law like this. The Commerce Clause in the Constitution gives Congress the ability to regulate interstate commerce, and as Bloomberg View puts it

The question is what qualifies as interstate commerce. For most of the second half of the 20th century, the answer has been clear…pretty much anything.

Is a farmer growing wheat for his own consumption engaging in interstate commerce? Yes. A small restaurant in Alabama refusing to seat blacks? Yes. A sick Californian growing her own medicinal marijuana, as allowed by state law? Yes. And so on.

and if these cases are considered appropriate use of the Interstate Commerce Clause, then certainly a requirement that is central to controlling the cost of an industry that accounts for 18% of the economy qualifies as well.

And lest you are tempted to cite the Founding Fathers to denounce requiring purchase of a private good, you would be wise to remember that George Washington signed a bill in 1792 mandating that all free men purchase a gun (Big Government indeed).

Perhaps the most interesting take on the Supreme Court’s decision comes from Dahlia Lithwick, who predicts that the Justices will stay away from a narrow decision striking down the law and keep their powder dry for the upcoming battle to dismantle the Warren Court’s legacy:

They will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And then the justices will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market…. And then—having been hailed as the John Marshall of the 21st century—he will proceed to oversee two years during which the remainder of the Warren Court revolution will be sent through the wood chipper.

Lithwick’s analysis sounds about right to me. Say what you will about John Roberts, but you have to admire his ability to smile politely and show the world a reasonable disposition while he works behind the scenes to radically alter the rules of the political system that Americans have come to understand them in the modern era. 

I say he and his team pass on this one so they have a freer hand when the eyes of the country aren’t focused on them.