"This court would not only have to stretch, it would have to abandon and completely overrule a lot of modern precedent, which would do grave damage to this court, in its credibility and power. The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statute of this magnitude and importance, and stretches so dramatically and drastically to do it.”
Sen. Richard Blumenthal, D-Con.
The power of anticipation is much greater than that of reaction. While it is good to learn from mistakes, it is much better to avoid a mistake in a first place, and even better yet to be correct ahead of time.
With that in mind, we must contemplate what will happen in late June regarding health care reform, with both feet firmly grounded in logic and evidence. There is no time for wishful thinking or accounting for principles, right and wrong. "Should" is not a relevant word. Trying to read judges' values and principles is a waste of time that serves as a Rorscach test rather than an analytical tool.
If one ignores abstractions and distractions like law and principle, actual facts and data make it clear what is going to happen in June, to anyone with both eyes open.
The question is whether we keep our heads in the sand, or execute a counter-offensive.
First, the facts.
The ACA is toast. History. A dead letter.
Observable data tells us this.
People often say that oral arguments don't make a difference in the outcome of a case. That is true in the sense that a scoreboard doesn't affect the outcome of a game--it doesn't change the winner, but it identifies the winner.
How well can Supreme Court votes be predicted by what justices say in oral arguments? The statistics hold up pretty well, and offer gloomy tidings for the Obama administration and its healthcare law.
Reporters and analysts who cover the court approach predicting the justices in various ways -– some more confident in their judgment than others. But, as with so many things in life, researchers actually have studied the question. Their finding backs up a long-standing intuition of lawyers and experienced journalists alike: If a justice keeps interrupting you with questions, your side is in trouble.
Inuition and data corroborating each other.
Their conclusion: "The number of questions and the total words in question ... provide a reasonable predictor of most Justices' votes," the clearest exception being Justice Clarence Thomas who, alone among his colleagues, almost never speaks during the court's arguments.
What does the data say?
The statistics illustrate the stark divide on the court -- the four Democratic appointees, Justices Elena Kagan, Stephen G. Breyer, Sonia Sotomayor and Ruth Bader Ginsburg -- all aimed their comments at Clement and Carvin by a heavy margin. Three of the five Republican appointees, Chief Justice John G. Roberts Jr. and Justices Samuel Alito and Antonin Scalia, were equally one-sided, aiming the overwhelming majority of their comments at Verrilli.
Kennedy was somewhat less skewed, but was far closer to the conservative side, with comments to Verrilli outnumbering those to Clement and Carvin by a 2-1 margin.
A more detailed breakdown of the data can be found at
The Monkey Cage
Taking a step back, this is the most conservative court in our lifetimes.
More conservative and prone to rightwing judicial activism than the court that produced Bush v Gore.
This is the court that gave us Citizens United.
A majority of the court are rightwing activists from the Federalist Society. These are movement conservatives. Their indisputable agenda is to use the Court's power to shape how our society functions--to promote rightwing policies and to torpedo progressive ones.
These are the Koch Brothers' stooges.
The ACA would have been the ultimate defeat of the conservative movement. Once the middle class started enjoying the benefits of federal regulation of the health care market, it would have been unassailable.
Does anyone, especially after this week, really think these guys would ever let that happen?
The more important the case, the more likely a hack will act like a hack.
This is the most important case in decades.
In order to pass meaningful health care insurance, the first problem that needs to be dealt with is not Congress, but the rightwing backstops in black robes.
And if we think it's just health care reform they're after, think again. Medicaid was on the chopping block this week. They may grant it a temporary reprieve, but their goal is to attach the federal spending power. In other words, they're looking to settle the score with FDR 70 years later.
Their agenda is equally radical as the House Republicans'. To put it more accurately, they share the same agenda. It is a coordinated strategy--choke spending in Congress, while undermining federal authority at the court (unless you're growing pot in your garden, of course).
So, the question becomes, how do we attack the Court's legitimacy and authority?
Rhetorically, it is important to do so to lay the groundwork for more concrete measures. But, rhetoric alone will not do it. These guys are Company Men--they have a job to do, and they don't care what the rest of us think about it.
And, the gang of five each still have another 10-20 years on the court. So, this will not change no matter who we elect in 2012, or 2016, or 2020.
They are accountable to no one, with no limit on their power as things stand.
The question is how do we leverage the elected branches to restrict their authority.
Sen. Blumenthal is on the right course. Congress and the President can pack the Court, ala FDR. They can strip it of jurisdiction. At the extreme, there is the Jacksonian precedent.
All options need to be on the table, if the vigilantes in black robes deem themselves "We Five Kings."
The Supreme Court has been down this road before. In the first half of the 20th Century, they imposed their ideology on the country, eschewing law for personal preferences.
It was only through blunt force intimidation (court packing) that FDR put them in their place.
The Supreme Court is determined to repeat history. So must we.