This coming Monday, the Supreme Court will start hearing arguments regarding the Affordable Health Care Act—AKA Obamacare.
Dalia Lithwick of Slate, who has the advantage of being wickedly smart, gives the most intriguing analysis of what to expect from the justices that I’ve read yet.
Below is a clip from the essay, but if this case interests you at all, read the whole thing, as it is guaranteed to stimulate your thinking.
The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway. Linda Greenhouse makes the first point more eloquently than I can. That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, “Are you serious?” And the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects. The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument.
So that brings us to the really interesting question: Will the Court’s five conservatives strike it down regardless? That’s what we’re really talking about next week and that has almost nothing to do with law and everything to do with optics, politics, and public opinion. That means that Justice Antonin Scalia’s opinion in the Raich medicinal marijuana case, and Chief Justice John Roberts’ and Anthony Kennedy’s opinions in Comstock only get us so far. Despite the fact that reading the entrails of those opinions suggest that they’d contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn’t whether those Justices will be bound by 70 years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments.
Professor Randy Barnett, the intellectual power behind the entire health care challenge, wrote recently that Justice Scalia could break from his previous opinions—freeing him to strike down the Affordable Care Act—“without breaking a sweat.” I suspect that’s right.
If that’s true, we should stop fussing about old precedents. These old milestones of jurisprudence aren’t what will give Scalia pause. What matters is whether the five conservative justices are so intent in striking down Obama’shealthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.
Oddly enough that turns more on what we think about the case than what they think.
This clip is interesting, but read the whole column. Lithwick builds a thesis that deserved to read in its entirety.
AND WHILE WE’RE ON THE SUBJECT OF HEALTH CARE AND THE SUPREMES: CAMERAS IN THE COURT, DAMN IT!
Slate’s Andrew Cohen has a pleasingly cranky column on the issue. Here’s a clip:
Pardon me for being such a drag on the eve of the Supreme Court’s momentous health care arguments, but I respectfully dissent. There is something discordant here, something that just doesn’t feel right. While the legal and political elite gleefully plan their big week at the High Court, while members of the Washington establishment applaud themselves for their inside connections to the courtroom, the rest of the country will be left, as usual, in the dark. The contrast gives new meaning to the phrase “unequal justice.”
Starting next Monday, for three consecutive days, two hours a day, the justices will hear oral argument in three joined cases that are primed to determine the immediate fate of the Patient Protection and Affordable Care Act of 2010, the controversial new federal health care law. Together, the three cases (out of Florida) are the most closely watched Supreme Court cases since Bush v. Gore, for they have the potential to determine the outcome of the next presidential election and not just pick a winner in the last one.
AMAZINGLY, THE SUPREMES EXPAND THE RIGHTS OF THE ACCUSED IN THE PLEA BARGAIN PROCESS
This column by the NY Times’ Adam Liptak illustrates why Wednesday’s Supreme Court ruling that expands the rights of the accused when it comes to pleading out a case, is so important—and amazing, really, that the ruling favored the accused.
Here are clips from Liptak’s story:
Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.
The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.
“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”
Scholars agreed about its significance.
“The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.[SNIP]
Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was 94.
“In today’s criminal justice system,” Justice Kennedy wrote, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”
Quoting from law review articles, Justice Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” He added that “longer sentences exist on the books largely for bargaining purposes.”