28 June 2012

A new "Switch in Time"?

So the 'bastard's favorite bon vivant, Brian, and favorite economist, Robert Reich, predicted the Obamacare outcome — but could anyone have predicted the justices would bring up broccoli 12 goddam times?

Reich predicted it'd go 6-3. It actually went 5-4, but that sorta reinforces his underlying argument.
"Chief Justice John Roberts is — or should be — concerned about the steadily-declining standing of the Court in the public’s mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizen’s United, for example, looked to all the world like a political rather than a legal outcome...Or consider the Court’s notorious decision in Bush v. Gore
The Supreme Court can’t afford to lose public trust....Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust....
...what better way to show the Court’s impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?"
The first time I read that I though "interesting argument, but if Chief Justice Roberts gave a damn about the appearance of judicial impartiality he wouldn't constantly vote in such an obviously partisan manner."

Reich also predicted the Commerce Clause would justify the individual mandate. It didn't. The majority allowed it on the Tax and Spend Clause. Nonetheless, anticipating Roberts would cross the aisle means Reich got more right than he didn't.

For what it's worth, I correctly put Kennedy with the conservative hardliners and nailed their dissenting arguments.

What's fascinating is Ed Wheelan's suggestion that Scalia's joint dissent was actually composed as the opinion that addressed a Ginsburg-authored dissent because Scalia scarcely addresses the actual opinion authored by Roberts. That does seem to imply things were very far from settled at the eleventh-hour.

Considering Reich's "Chief Justice Roberts chose to save the court" argument, this more than somewhat resembles The Switch In Time That Saved Nine where a different conservative Justice Roberts crossed the aisle to white-knight a different Democratic president's sweeping reforms during a different economic depression.*

It was Dorothy Parker who said, "It isn't true that life is one damn thing after another. It's one damn thing over and over."

* UPDATE: Noticed that Robert Reich made the very same observation in his most recent blog post. Don't know which of us published first, but I swear I didn't plagiarize him. (Actually, feeling a bit puffed up we could arrive at the same conclusion independently. Whoo-hoo!)

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