Two days ago I wrote about David Blankenhorn, longtime “traditional” marriage proponent who reluctantly announced he will no longer oppose same-sex couples’ freedom to marry. I examined his reasoning, because I believe it’s important to understand the logic of those with whom we disagree. And I took issue with Richard Kim’s response at The Nation, which I took to represent the radical/progressive wing of the LGBT movement, which has long groaned at the focus on marriage equality. I got some heated critiques about that post.
The verdict of the Supreme Court upholding nearly all of the Affordable Care Act is a victory to be savored in the full knowledge that it may be only temporary and includes potentially damaging changes in constitutional interpretation.
It is a victory, first of all, for the millions of people excluded from health insurance who stand to gain protection despite their medical history or low incomes.
It is a victory for the rule of law in the face of a group of partisan conservative justices who want to immobilize federal power in social policy.
It is a victory for the millions of people who have struggled for decades to achieve equal access to health care.
It's no secret there's a health-care crisis in Texas. The state has the biggest uninsured population in the country with around 6.2 million—or a quarter of all residents—lacking insurance. As a Kaiser Health News report highlighted, poor and uninsured Texans must sometimes wait more than 24 hours in emergency rooms, where treatment is most expensive, while more cost-effective health-care options, like preventative care, are out of reach.
Given the very strong likelihood that the centerpiece legislation of the Obama administration would be struck down in its entirety, yesterday's decision upholding the Affordable Care Act seems to most progressives like both a relief and a major political victory. But was it actually a legal victory when you examine the opinions closely? Tom Scocca says no:
It’s only a bit after 8 a.m. and Russell Mokhiber is shouting at a belly dancer in front of the Supreme Court of the United States.
Granted, it’s out of concern—it’s the kind of Washington, D.C., summer morning when it feels like the air is one giant dog’s tongue licking your body, and the lady in question, Angela Petry—a middle-aged sandy blonde with the abdominal muscles of an 18-year-old pageant queen—is his wife. She’s been dancing up a storm, a whirl of skin, red and blue silk scarves, and beads dripping from her bosom.
On the fourth day of the Battle of Gettysburg, General Richard S. (“Bald Dick”) Ewell, riding behind the lines, was hit in the leg by a Union sniper’s bullet. Unfazed, the one-legged general remarked, “It don't hurt a bit to be shot in a wooden leg.”
It may be that the federal government was shot in a wooden leg today. Overall, that’s true—the ACA survived, by one vote, a case that could have voided it in its entirety and wreaked havoc on federal power generally. But in particular, in the Court’s major new cutback on federal power—the limits on the use of Congress’s spending power to convince the states to sign on to an expanded Medicaid program—the federal government was wounded by being forbidden to do something it really never wanted to do.
Does anyone remember yesterday, before our minds were blown away by watching (on Twitter) Roberts vote to uphold the Affordable Care Act and Kennedy join with the three billygoats to declare the whole thing unconstitutional? I’m having trouble remembering, too. But my notes here say that yesterday I wrote about David Blankenhorn’s decision to support same-sex marriage, and I critiqued (via something Richard Kim wrote at The Nation) the more progressive faction of the LGBT movement for their long-ago hopes of rerouting the marriage equality movement into a more general attempt to overhaul marriage and family law.
John Roberts imagined himself as a consensus-builder after his confirmation to be the 17th chief justice of the Supreme Court, a justice in the mold of John Marshall charged with alleviating divisions on the Court by advocating judicial modesty. Some progressive observers took these claims very seriously. I was inclined to view them as essentially fraudulent.
For months before today’s announcement of the Supreme Court’s decision in the Health Care Cases, the conventional wisdom had centered on two things: (1) The vote would be 6-3; and (2) Chief Justice John G. Roberts would write the opinion. Roberts would jump the way Justice Anthony Kennedy jumped and then write the opinion to shape doctrine for the future.
For supporters of the Affordable Care Act, it was hard to hear—over the cheering—anything besides the fact that the Supreme Court today kept the law almost entirely intact. But the Court did make a slight change to a crucial part of the ACA: Medicaid expansion. Under the law, by 2014, states are supposed to extend their Medicaid programs to cover people under 65 with incomes up to 133 percent of the federal poverty line. An analysis from the Center on Budget and Policy Priorities shows that means 17 million more people would have access to health care over the next 10 years. Before today, it looked like states didn't have much choice in the matter.
The Supreme Court's decision on the Affordable Care Act, particularly Justice Roberts siding with the liberals, took most everyone by surprise this morning. But if you tune in to Fox News or surf around the conservative blogs, they seem to be taking it somewhat philosophically. They're not happy, but there's little rending of garments and gnashing of teeth. Mostly they're saying, well, we'll just have to win this in November (see here for a representative sample). There's also a good deal of discussion of the fact that the Court declared that the requirement to carry health insurance is permissible under the government's taxing power. After all, if there's one thing Republicans know how to do, it's complain about taxes. Mitch McConnell quickly took to the floor of the Senate to condemn the decision, and no doubt Mitt Romney will soon say something so vague that no one can determine what he actually thinks.
But here's my guess: Republicans are going to drop health care very quickly.
I’m not the only one who has noticed that Antonin Scalia has become the Supreme Court’s crazy uncle.
As I wrote here yesterday, Scalia’s dissent in the Court’s Monday ruling striking down most of Arizona’s anti-immigrant law was bizarre beyond belief—arrogating to Arizona a degree of sovereignty in border (and foreign, and military) policy that law and custom restrict to nations. His willingness to let Arizona make its own foreign policy was also in sharp contrast to his refusal to grant Montana the right to put controls on campaign spending in its state elections—a decision he joined on the same day he issued his Arizona dissent.
One of the most interesting dynamics on the Roberts Court is the emerging rivalry between Justice Antonin Scalia and Justice Samuel Alito for intellectual leadership of the conservative wing. From time to time, Alito openly mocks Scalia’s “originalist” philosophy (see, for example, his concurrence in United States v. Jones, ridiculing the idea that “eighteenth-century tort law” can decide questions about global positioning technology). It’s a generation thing: Alito is a callow 62 to Scalia’s 76. Like young folk everywhere, he’s embarrassed for his friends to see him in public with crazy Uncle Nino.
These guys aren't too worried about owning health care.
In the search for silver linings to a Supreme court decision striking down part or all of the Affordable Care Act, many people have suggested that should it happen, Americans will turn all their displeasure about the health care system on conservatives. Specifically, it is that that they will "own" the health care system. James Carville says that if the ACA is overturned on a 5-4 vote, "The Republican party will own the health care system for the foreseeable future." Former Solicitor General Walter Dellinger says, "If the court were to strike down this major reform effort, 40 years in the making, the court would own the resulting health care system for the next decade and beyond. It’s a slightly highbrow version of the universal rule: 'You broke it, you bought it.'" The Republican party is one thing, but the Supreme Court "owing" health care? What does that mean? That people will be protesting outside the Court when their premiums go up? First of all, they won't, and second of all, I don't think the Court's conservative justices could care less if they did.