Friday, November 14, 2014

Has the Supreme Court Finally Become More Politcal Than Judicial?

How much damage can these five Catholic men do before they're done?

Linda Greenhouse thinks so, and that's a huge warning sign. Whenever I've read or watched Supreme Court commentary from the likes of Nina Totenberg, Linda Greenhouse, Jan Crawford, Dahlia Lithwick, and current PBS Court-watcher Marcia Coyle, they've always been deferential to the justices, respecting their motives and assuming that their decisions are based on a defensible interpretation of the Constitution.

No longer.

Linda Greenhouse as good as says that the days of the Supreme Court being above politics are over.
So no, this isn’t Bush v. Gore. This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect. When the court agreed to hear the first case, there actually was a conflict in the circuits on the constitutionality of the individual insurance mandate. So the Supreme Court’s grant of review was not only unexceptional but necessary: a neutral act. The popular belief then that the court’s intervention indicated hostility to the law was, at the least, premature.
Not so this time. There is simply no way to describe what the court did last Friday as a neutral act. Now that the justices have blown their own cover, I notice the hint of a slightly defensive tone creeping into the commentary of some of those who have been cheering the prospect of rendering the Affordable Care Act unworkable: that as a statutory case, without major constitutional implications, any problems for ordinary Americans that result from a ruling against the government can be fixed by Congress (where House Republicans have voted 50 times to repeal the entire law) or by the states themselves (36 of which failed to set up their own exchanges, thus requiring the federal government to step in as provided by the law).
I've looked from every angle at this case, and it's clear that the law's intent was for the federal government to step in if a state failed to create its own exchange. I'm no legal expert, but it doesn't take a genius to understand this case. The fact that it's clear the intent of the law is to have working exchanges in all states -- and that the IRS has adopted regulations based on that clear intent -- means that judicial review seems an obvious political attempt to circumvent the law.

Why else review it?

The uninsured who now have insurance don't find this funny at all.

Note. I'm an optimist. My hope is that the four justices who are mad at Roberts for allowing the individual mandate in the last test case are just messing with him. Will Roberts let his legacy take the fall for the conservative cause? It will be quite a fall, one that John Roberts might not want to undergo. Linda Greenhouse is not as optimistic as I am, and that's quite a shock.

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