It is time to move past the PPACA cases for the time being,* the next step the opinions in June, perhaps a separate volume for the various opinions likely to be in place there. What is the under/over of the justices who will not have a single opinion? Three or so? The contraceptives issue underlines that this doesn't mean some PPACA related subject will not arise before then. Chris Hayes will have a show on the matter this weekend. Others will continue to talk about it.
My hope was that at least one conservative justice would be sane on the matter and vote to uphold the law. Dahlia Lithwick and others think they have bigger game and/or Kennedy/Roberts are worried about the limited capital for judicial activism, so they will save their moves for other things. Who knows at this point. One thing that many LOVE to bring up is the "notorious two-some" to underline the Court has no shame -- Bush v. Gore and Citizens United. It's like the courts, you know, every other year decide elections and overturn seminal congressional legislation.
Bush v. Gore shocked some people, even those who knew the participants and saw them work for years (Rehnquist since Nixon days and before), because it was not "business as usual." I was around then. I don't speak from naivete here, I think. It was a rather special case, a messy election, a virtual tie and chances are Bush would have won in the end. Congress was split and the tie went to the state count, the state run by Republicans. This doesn't make the ruling okay.
But, it doesn't make it overturning a major piece of legislation that was debated over a couple years etc. either. In fact, cynics can look at insurance companies, who might be thought of as simpatico with conservatives. They agreed to the law. Of course, they can just toss out the whole thing. Eh. This Court, since the days of Rehnquist, don't like to toss the baby out with the bathwater. They like to find some middle path, even if it isn't a great one. Kennedy probably would be loathe to toss out the whole thing. The result doesn't help insurance companies, does it?
Take CU. I don't think the result there is horrible, since I'm of a libertarian bent on First Amendment issues, and don't think there is a "corporation" exception there. Also, that wasn't some unprincipled ruling on some level. It was "activist," yes, but the four conservatives for years voiced their opposition on constitutional grounds. Unlike Scalia voting to uphold the pot ban in Gonzalez v. Raich while finding this law so bad, they were consistent for years. Also, seriously, just what did the law do? Money finds an outlet. And, they didn't just knock the whole law down. They upheld the disclose and disclaimer aspects plus the foreign money part, the former leaving open -- some real chance for regulation. Campaign finance laws are not dead.
Maybe, I will no longer have much to hang on to if they overturn the PPACA as a whole. I'll just have to wait for Republicans to get into office, so they can pass RomneyCare with the right magic "tax" word included, but with more anti-women measures and more watered down reforms than the 1970s era moderate Republican measure that was passed today (note, that I'm not saying it is Republican TODAY; this is akin to using the past to suggest the Democrats are the racist party) . Other than the fact the ruling will be STUPID, one thing that will grate (I'll "actively" deal with it, while I "just exist") will be the almost gleeful "told ya sos" by both sides. One will the "great threat to liberty" brigade, the other will bring up the usual cases, the New Republic types tossing in Roe v. Wade. And, some will calmly look from afar, with their comfortable health care, or perhaps, just dealing with the status quo the best they can.
Then, it might be time to get the liquor.
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* I need to so that I can avoid analysts from Scotusblog, already subject to criticism from me for misstating what the law does, argue that "conservatives were well ahead in their explanations to the public for why their interpretation is the better one," though in a piece strongly criticizing a RNC twisting of oral audio. It is arguable that the SG had some trouble on Tuesday (but see) and overall did well on some level. Still, "well ahead" is a bit much. Anyway, Charles Fried, a "conservative," was no big fan of what they were doing, so let's use a bit of care. Or just move on.
My hope was that at least one conservative justice would be sane on the matter and vote to uphold the law. Dahlia Lithwick and others think they have bigger game and/or Kennedy/Roberts are worried about the limited capital for judicial activism, so they will save their moves for other things. Who knows at this point. One thing that many LOVE to bring up is the "notorious two-some" to underline the Court has no shame -- Bush v. Gore and Citizens United. It's like the courts, you know, every other year decide elections and overturn seminal congressional legislation.
Bush v. Gore shocked some people, even those who knew the participants and saw them work for years (Rehnquist since Nixon days and before), because it was not "business as usual." I was around then. I don't speak from naivete here, I think. It was a rather special case, a messy election, a virtual tie and chances are Bush would have won in the end. Congress was split and the tie went to the state count, the state run by Republicans. This doesn't make the ruling okay.
But, it doesn't make it overturning a major piece of legislation that was debated over a couple years etc. either. In fact, cynics can look at insurance companies, who might be thought of as simpatico with conservatives. They agreed to the law. Of course, they can just toss out the whole thing. Eh. This Court, since the days of Rehnquist, don't like to toss the baby out with the bathwater. They like to find some middle path, even if it isn't a great one. Kennedy probably would be loathe to toss out the whole thing. The result doesn't help insurance companies, does it?
Take CU. I don't think the result there is horrible, since I'm of a libertarian bent on First Amendment issues, and don't think there is a "corporation" exception there. Also, that wasn't some unprincipled ruling on some level. It was "activist," yes, but the four conservatives for years voiced their opposition on constitutional grounds. Unlike Scalia voting to uphold the pot ban in Gonzalez v. Raich while finding this law so bad, they were consistent for years. Also, seriously, just what did the law do? Money finds an outlet. And, they didn't just knock the whole law down. They upheld the disclose and disclaimer aspects plus the foreign money part, the former leaving open -- some real chance for regulation. Campaign finance laws are not dead.
Maybe, I will no longer have much to hang on to if they overturn the PPACA as a whole. I'll just have to wait for Republicans to get into office, so they can pass RomneyCare with the right magic "tax" word included, but with more anti-women measures and more watered down reforms than the 1970s era moderate Republican measure that was passed today (note, that I'm not saying it is Republican TODAY; this is akin to using the past to suggest the Democrats are the racist party) . Other than the fact the ruling will be STUPID, one thing that will grate (I'll "actively" deal with it, while I "just exist") will be the almost gleeful "told ya sos" by both sides. One will the "great threat to liberty" brigade, the other will bring up the usual cases, the New Republic types tossing in Roe v. Wade. And, some will calmly look from afar, with their comfortable health care, or perhaps, just dealing with the status quo the best they can.
Then, it might be time to get the liquor.
---
* I need to so that I can avoid analysts from Scotusblog, already subject to criticism from me for misstating what the law does, argue that "conservatives were well ahead in their explanations to the public for why their interpretation is the better one," though in a piece strongly criticizing a RNC twisting of oral audio. It is arguable that the SG had some trouble on Tuesday (but see) and overall did well on some level. Still, "well ahead" is a bit much. Anyway, Charles Fried, a "conservative," was no big fan of what they were doing, so let's use a bit of care. Or just move on.