Health Care Reform: What Now?

After all the work Democrats did getting health care reform through every veto point (five committees, a 60-vote Senate, House passage twice, the Senate again, presidential signing) it's sickening to think about having the Supreme Court just throw it out. The fact that the individual mandate was showing up in mid-1990s Republican health-care proposals won't give Scalia or Alito or Thomas any affection for it. Dahlia Lithwick says she doesn't know which way things are going to go, and if she doesn't, neither do I.

My guess has been that Kennedy is the decisive Justice, and we get a 5-4 decision. I've heard some people say that Roberts will vote with the majority if Kennedy does, which I guess I wouldn't rule out -- for all I know, Roberts might not care to vote with the right-wingers if the law is going to get upheld anyway. But that still makes Kennedy decisive.

If I have any idea how health care reform efforts should proceed if the Supreme Court strikes down the whole law, it's via Medicare expansion. Medicare for All should be a goal that our presidential candidates announce support for. (I could easily see the incentives in primaries supporting this -- if the other candidates aren't willing to go there, you should go there and people will like you better.) The reach is always further than the grasp, so next time we're in power, we end up having to make a bunch of compromises with interest groups and pass Medicare for people under 25 or something, and then a couple decades later the middle of the donut gets filled in.

Again, losing this court case will be an awful defeat. Scott Lemieux is right as far as I can tell -- there's no silver lining here. But the thing I tell myself about these things is that at one point, America had slavery. People were allowed to own other people, buy them, whip them, and sell their children. And somehow, that stopped. Having a disastrous health care system is going to be easier to fix than slavery. I don't even think we'll have to fight a bloody war with over a half million casualties. There might be setbacks that destroy millions of person-years of work, but what you do after the setbacks is start committing person-years to another shot at making things better.

ACA, SCOTUS, and Activist Legitimacy

J. kelly Wright isn't walking through that door,
at least not until activists start taking court
appointments seriously

I agree with Scott Lemieux that, should the Supreme Court overturn the Affordable Care Act (as I think seems likely at this point), the Court as an institution will not suffer a crisis of legitimacy. While the current polling on the Constitutionality of Obamacare is almost certainly a result of the public discourse on the subject, the end result means that a large portion of the electorate will be perfectly fine with a decision that overturns the law. As an institution, the public views the Supreme Court as one of the more trustworthy American institutions, certainly more trustworthy than Congress or even the Presidency, and Gen Y is considerably more deferential to authority figures than the Boomers or Gen X.

What should happen (and, if there is any justice in the world, will happen), whether or not we end up with a nakedly partisan ruling, is that liberal activists will start taking judicial appointments much more seriously. And I don't mean "get more lawyers to join the American Constitution Society" seriously. I mean rank-and-file activists need to start making support for progressive court appointments a sine qua non for political candidates. If courts are going to be a purely political institution, they need to be a purely political institution to both parties, not a political institution for one and a political-technocratic institution for the other.

Over the past three decades, the right has made devotion to the Republican (let's not call it conservative when it comes to court appointments) political agenda a prerequisite for judicial postings. This is not to say that Republican judicial appointees are incompetent partisan hacks; some are, but a great many are competent partisan hacks, well versed in the techniques of using the means of legal sophistry to achieve right-wing policy ends. It's time for Democrats to start doing the same thing. No more appointing mushy moderates to district courts because that's what the home state Senator is a Republican or a mushy moderate Democrat. The President's job will be to appoint the most progressive judges he can find; the job of the Senate Judiciary Committee chair and the Majority will be to round up votes from recalcitrant Western and Southern Democrats. And it will be the job of rank and file political activists to once again emphasize to their elected officials that this is a priority, the way it was a priority in the New Deal Era for labor unions, or in Civil Rights Era to African-Americans. If politics is the slow boring of hard boards, restructuring the courts may be the hardest board out there. It's time to get cracking.

What Digby Said

On expecting the Grown-up Republicans to act like Grownups.

This has been another edition of What Digby Said.

Not a Day to Feel Good About The World

Persuing SCOTUSBlog (be patient, it may not load immediately today) as well as veteran Courtwatchers Dahlia Lithwick and Jeffrey Toobin, it looks like opinions on oral argument range between "the individual mandate is totally hosed" and "there's some small chance that the mandate will survive".

Let's just say there are days I've felt better about the world.

"Stand Your Ground"

Let me give an example of the phenomenon Jonathan Bernstein talks about here -- the limits of the advantages that poll-tested words give you. The "Stand Your Ground" laws implicated in allowing George Zimmerman to shoot Trayvon Martin without consequences are now facing widespread ridicule, and the opponents of these laws are calling them by that name. "Stand Your Ground" actually strikes me as a pretty good poll-tested phrase, but the negative publicity the laws are getting will eliminate the value of the phrase pretty quickly.

Perhaps the classic example of this is "welfare", which was considered a positive phrase when it was initially used for social programs that gave money to the poor. You can see why -- it involves people faring well, which sounds pretty nice. But when people came to have views about the laws themselves (driven in no small part by negative attitudes towards poor black people) the term got the pejorative connotations it has today.