Stop Overthinking This. The Real Significance of the Court’s Decision Is the Decision.

[babylonsister]

http://swampland.time.com/2012/06/29/stop-overthinking-this-the-real-significance-of-the-courts-decision-is-the-decision/

Stop Overthinking This. The Real Significance of the Court’s Decision Is the Decision.
By Michael Grunwald |



Now is the time for the Smart Takes, for pundits to earn their pay, for analysts to analyze the larger significance of the Court’s decision beyond the obvious Obamacare Survives headlines. Here’s my dumb take: Stop overthinking this. The larger significance is: Obamacare Survives. That is a big Biden-word deal for everyone who interacts with the health care system, which is to say, everyone. The speculation about the future of the Roberts Court, the Commerce Clause, and other judicial precedents implied by the opinions are all just that—speculation. That future will be decided by two factors that cannot be determined by studying Thursday’s footnotes.

At the risk of sounding like Captain Obvious, those two factors are: the winner of the 2012 presidential election, and the health of our nine deciders in robes. If you want to guess what will happen the next time the Court hears a challenge to a social program, it is somewhat helpful to know that five justices see limits to the Commerce Clause. But it would be more enlightening to know whether those five justices are careful about crossing the street when buses are coming, and whether President Obama or President Romney will get to replace them if they aren’t. That story about Steven Breyer getting mugged a couple months ago really freaked me out; Supreme Court Justices should have almost presidential-level security, because 5-4 votes have been guiding the direction of our nation.

Part of what I’m saying here is that judicial precedent seems overrated in the modern era. The justices all have theories of the law and outlooks on the world, none of which they mention in their confirmation hearings, and then they apply those theories and worldviews towards the cases in front of them. Precedent matters much less than getting to five. What was the precedent for Bush v. Gore? Justice Scalia has used the Commerce Clause to justify all kinds of laws he liked; now he sees that restricting it is a useful way to strike down laws he doesn’t like. The Court refused to hear a challenge to its Citizens United decision allowing virtually unlimited corporate donations this session–not because the five justices in the majority believe subsequent events have confirmed their argument that money doesn’t corrupt politics, but because those five justices are still in the majority. If new justices join the Court, Citizens United might not stand.

Even before the modern era, the judicial reasoning behind major cases mattered less than the outcome of major cases. I vaguely recall from a college class that the majority in Brown v. Board of Education grounded its decision in sociological mumbo-jumbo; what mattered was that it outlawed school segregation. Roe v. Wade was justified by some out-of-the-blue hinkiness about a right to privacy that clearly hasn’t extended to our Facebook accounts; what mattered was that it allowed abortion. What matters today is that Obamacare survives, with its dramatic expansions of coverage, its reforms of the insurance market, and its fledgling efforts to control soaring costs. Long after the Chief Justice’s views about mandates, taxes, and “non-activities” are forgotten by everyone but law professors, his decision to approve the largest expansion of social welfare since the Great Society will be remembered.

Unless, of course, President Romney manages to repeal it, or appoint more justices willing to overturn it. It’s all about rounding up the votes.

[Moral Compass]

1. Exactly Right

This post gets it exactly right. This is a win. That's all that matters. The Rightwingoverse is currently on fire with all sorts of memes about how this defeat is really a victory in disguise. It's not. They actually lost one and lost big.

What really happened is that Roberts looked over the precipice and realized that another 5/4 ruling on party lines would pretty well tear the whole thing open and leave the Supreme Court without a shred of credibility. He's many things, but he's not stupid. He saw that with Kennedy now reliably in the right wing of the court that someone had to pull back from what was beginning to look like a PR disaster. And that someone had to be him, the Chief Justice.

So, now every path the Republicans can take is a bad one. There is state by state rebellion (let's just call refusing to implement the plan what it is...). And there is repeal which can't conceivably happen until after the election and will only work if Romney wins and both the House and Senate are in the R column.

It's all about the votes. And this time it went our way. Let's try to build on it.

[babylonsister]

2. I like your post Moral Compass, and welcome to DU!

[bemildred]

3. +1 nt