Well, That Went Better Than I Expected . . . .

This morning’s SCOTUS ruling was far from perfect (see: hurdles to Medicaid expansion, broccoli-based logic on the Commerce Clause), but there’s truth to the adage about the dangers of letting the perfect be the enemy of the good. I’m reminded of a book I haven’t read — indeed, I don’t even know what it’s about — but whose title sticks in my head: When Will There Be Good News? June 28, apparently.

Take it away, Lyle & Co.:

And the clincher:

The over-analysis and hand-wringing on the part of liberals as well as conservatives is already in full swing online (and I’ll probably get into the copy-paste-snark action of sorting through the responses soon myself), but for now I’m just content to sit on Forrest Gump’s bench and enjoy the best chocolates in the box. Between the positive (“A Victory for Obama,” says the Times) and negative (“Did Roberts Save Health Care Just So He Could Gut the Commerce Clause?” asks Slate) interpretations of the decision, I feel as if I’m getting whiplash.

But behind all the nuance and grief that even Democrats grateful for John Roberts will eventually extract from the decision is a desire to simply be glad for awhile. Yes, the ruling could have long-term implications for federal power, as conservatives may be emboldened to challenge other legacy legislation (environmental laws, Title IX, even the Civil Rights Act) based on the Commerce Clause. Yes, there could be problems with a “donut hole” in coverage if states decline the new Medicaid funding and refuse to enroll people all the way up to the income level at which federal subsidies kick in. Yes, the survival of “Obamacare” could spark a Tea Party resurgence and dim electoral prospects for Democrats in November. For now, however, I’m going to indulge in ignoring the sausage-making process of today’s ruling and be thankful that the court got the ends right, if not the means.

As with most things in life, there’s a relevant Paul Krugman quotation. In Friday’s column, my favorite economist writes that “this isn’t over — not on health care, not on the broader shape of American society. The cruelty and ruthlessness that made this court decision such a nail-biter aren’t going away.” Still, his conclusion is a nice change from the usual Krugman doomsday predictions about the fate of the euro and the GOP’s slide into nuttiness:

But, for now, let’s celebrate. This was a big day, a victory for due process, decency and the American people.

Last Thoughts Before Health Care Götterdämmerung

Update: My own hasty (and as a disclaimer, possibly inaccurate!) take on what just happened. The scenario that everyone thought least likely — #4 on the Post’s list of 4 Possibilities, I think — in fact came to pass. Scotusblog: “Essentially, a majority of the Court has accepted the Administration’s backup argument that, as Roberts put it, “the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.” Actually, this was the Administration’s second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.”

Individual mandate stands, but as a tax, not an exercise of the Commerce Clause. Medicaid expansion allowed but cannot be required; state can reject the new funds without putting the rest of their Medicaid dollars at risk. At first glance, it looks like the majority (with Roberts, not Kennedy, as the swing vote) bought the broccoli argument but found a way around it. For all the debate, this does seem to be “judicial restraint” — it certainly doesn’t seem like the opinion of an activist court bent on undoing legislation, as liberals have claimed recently and conservatives have claimed historically. The decision seems to place major limits on federal power, but in the matter directly at hand — the Affordable Care Act — those limits are superseded by the fact that, no matter what the administration said in public about the mandate not being a tax, the mandate is indeed a tax. Takeaway: conservatives won on federal power, liberals won the battle but perhaps not the war. After the Doomsday atmosphere of the past few months, I’m even OK with half a battle at this point. Or maybe the correct metaphor is “half a loaf.” Half a loaf is better than opening up the wrapper and finding green mold growing all over your sandwich bread.

The 193-page ruling itself, which I’ll probably muddle through intermittently throughout the day (not exactly single-sitting Nora Roberts reading, this one) can be found here.

Original Post:

Well, it’s T-5 hours. We’re about one double-feature (may I suggest Titanic and Armageddon?) away from the Supreme Court’s decision on the Affordable Care Act. On the assumption that writing anything at all about health care will be intolerable for the next few days — heck, just reading anything from the conservative end of the spectrum will almost certainly be insufferable — I thought I’d take the chance to highlight a recent post by New York Magazine’s Jonathan Chait, who manages to distill the differences between Democrats and Republicans into a few paragraphs. It’s partisan, to be sure, but not any more so than the “death panel” lies that Sarah Palin continues to insist — in 2012! — have merit. While I don’t believe conservatives harbor some evil, deep-seated desire to throw Granny off a cliff, I do think there is an unbridgeable gap between those who see health care as a human right and those who regard it as just another aspect of the amoral free market. Chait writes that “there has not been any open moral debate over . . . whether access to basic medical care ought to be considered a right or something that is earned.” He cites several news stories from the last few days about the human impact of the President’s health care reform — and the dismal, perhaps devastating, impact of its potential repeal. The New Republic’s Alec MacGillis wrote one of the better stories about the real people affected by the reforms, and countless other (mostly left-leaning) outlets have observed that even if SCOTUS limits itself to invalidating the individual mandate, 10 to 20 million fewer people will have access to health insurance than under Obama’s plan; if the court tosses out the Medicaid expansion as well, that number balloons to 30 million. Chait writes that “[m]aybe these stories sound like cheap emotional manipulation. They are actually a clarifying tool to cut through the rhetorical fog surrounding the health-care debate and define the question in the most precise terms.”

But I should let Chait’s post speak for itself:

Opponents of the law have endlessly invoked “socialism.” Nothing in the Affordable Care Act or any part of President Obama’s challenges the basic dynamics of market capitalism. All sides accept that some of us should continue to enjoy vastly greater comforts and pleasures than others. If you don’t work as hard as Mitt Romney has, or were born less smart, or to worse parents, or enjoyed worse schools, or invested your skills in an industry that collapsed, or suffered any other misfortune, then you will be punished for this. Your television may be low-definition, or you might not be able to heat or cool your home as comfortably as you would like; you may clothe your children in discarded garments from the Salvation Army.

This is not in dispute. What is being disputed is whether the punishments to the losers in the market system should include, in addition to these other things, a denial of access to non-emergency medical treatment. The Republican position is that it should. They may not want a woman to have to suffer an untreated broken ankle for lack of affordable treatment. Likewise, I don’t want people to be denied nice televisions or other luxuries. I just don’t think high-definition television or nice clothing are goods that society owes to one and all. That is how Republicans think about health care.

This is why it’s vital to bring yourself face-to face with the implications of mass uninsurance — not as emotional manipulation, but to force you to decide what forms of material deprivation ought to be morally acceptable. This question has become, at least at the moment, the primary philosophical divide between the parties. Democrats will confine the unfortunate to many forms of deprivation, but not deprivation of basic medical care. Republicans will. The GOP is the only mainstream political party in the advanced world to hold this stance.

The maddening thing is that Republicans refuse to advocate the position openly. The more ideologically stringent ones couch their belief in euphemisms, like describing health care as a matter of “personal responsibility.” But even such glancing defenses are too straightforward for most Republican leaders. Instead they simply rail against the specifics of Obamacare and promise to “replace” it, without committing themselves to an alternative path to universal coverage. It is to maintain this pretense of wanting some different solution that John Boehner warns Republicans to hide the unadulterated joy they will feel if the Supreme Court does their work for them.

The maintenance of mass lack of access to medical care is their cause. That is why the Republicans never offered an alternative universal-health-care plan and why the Paul Ryan–authored budget they have embraced repeals Obama’s coverage subsidies and throws millions more off their Medicaid, without any replacement.

Their reason for failing to defend their actual principles is obvious enough: That tens of millions of Americans deservedly lack a right to basic medical treatment is a politically difficult proposition. Thus, they oppose Obamacare without defending the indefensible conditions they actually favor. Their tactic of adding vague gestures toward unspecified future reforms has been so successful that news reports almost uniformly describe the Republican health-care stance as yet-to-be-determined, rather than an outright defense of maintaining health care as an earned privilege rather than a right.

Chait has a few more paragraphs on the political and logical reasoning behind the GOP’s opposition to health care, but in the end he is angry that conservatives are able to dodge the moral implications of their position. They squawk about the “murder” of millions of “unborn children” (an oxymoron if I ever heard one), yet they can’t muster outrage at a system in which real, live children are kicked off Medicaid (because that’s what happens when you eviscerate and block-grant the program) or denied coverage based on pre-existing conditions. Chait concludes with the observation that “the Republican politicians, the conservative pundits and philosophers, are all perfectly happy at the prospect that they can win politically without making the case for what they genuinely believe.”

So, now that the clock has ticked down to T-minus-4-hours, I’ll leave you with this tweet from the Washington Post’s Greg Sargent: “So any chance we can include a mention of the uninsured in our ‘winners and losers’ stories on SCOTUS and Obamacare tomorrow?”

I hope so. And who knows — maybe we (i.e. liberals) will be pleasantly surprised. Stranger things have happened, I suppose, though it’s hard to recall many off the top of my head. A dash of black humor: Perhaps the best recommendation comes in the classic exhortation, “My advice to you is to start drinking heavily.” Of course, given that the Supreme Court will hand down its ruling around 7:30 a.m. PST, a better prescription might be for a little Lyle and a lot of Valium.

#SCOTUSHumor for a Dreary Day

These may be collector’s items after Thursday

Another Monday, another missed chance for the Supreme Court to rule on health care reform. The verdict is now due Thursday, except in the prolong-the-agony scenario in which “the justices decide to punt it over until next year — an outcome that is possible, although thought to be unlikely,” according to Wonkblog’s Sarah Kliff. I have no intention of writing anything long about the fate of the Affordable Care Act, as I will vomit if I have to read one more boilerplate anticipatory article (WaPost: “Everything You Need to Know About ObamaCare and SCOTUS in One Post,” NYT:”Wearing Brave Face, Obama Prepares for Health Care Ruling,” Politico: “A Viewer’s Guide to the SCOTUS Health Care Ruling“), let alone write one. The world does not need another “11 Facts About the Affordable Care Act.” Besides, the constant barrage of coverage has left my wonky, liberal-crusader nerves raw. Perhaps it’s silly to care so much about a 2,700-page law, but in this case even more than usual, the political is personal. I’m feverishly protective of the legislation not only because I believe universal health care is a moral imperative but because I am loath to see President Obama’s signature achievement invalidated.

There’s also not a lot for me to say about the decisions that the Court did hand down today, as I don’t really have a dog in any of those three fights. The ruling on Arizona’s immigration law was unexpected but satisfactory, as it threw out S.B. 1070’s most punitive measures and reaffirmed the supremacy of the federal government while allowing state police to continue common-sense checks of arrestees’ immigration status. The Court’s rejection Montana’s challenge to Citizens United was expected but equally satisfactory, as I’m one of those old-school First Amendment absolutists who believe, contra current conventional Democratic wisdom, that freedom of speech shouldn’t be held hostage to anti-corporate outrage. The 5-4 ruling against mandatory life sentences for juvenile offenders was perhaps the most surprising (in a good way), though I have to wonder how a court that finds life-without-parole to be “cruel and unusual” doesn’t feel the same way about the death penalty’s state-sanctioned killing. Today’s most interesting interlude had little to do with the substance of the rulings, and came in the form of Justice Scalia’s dyspeptic and tangential rant against Obama’s recent decision to spare illegal immigrants under age 30 from deportation. Scalia cited the President’s remarks to the media about the policy switch being “the right thing to do,” leading Slate commentator Dahlia Lithwick to observe tartly that the justice had expressed “perhaps the first originalist reading of a presidential press conference.” Salon’s Glenn Greenwald tweeted that “What’s so ironic about Scalia is he’s 1) the loudest complainer about Court politicization & 2) the most politicized Justice in a long time.”

Come Thursday, I will join the 50,000 court-watchers waiting on tenterhooks before their computer screens, willing Scotusblog’s live feed to update and having my last nerve shredded by the constant doors-slamming sounds of the live blog. (What tech moron decided that clicking noise was a good idea, anyway?) For now, I thought I’d do a roundup of the lighter reactions to Monday’s announcements. The Washington Post’s Fix blog collected “the best SCOTUS tweets of the day,” including the following:

I don’t agree with John Podhoretz on much, but I liked this:

The Fix missed some of the best ones, however. From some of my own favorite (mostly left-wing) folks on Twitter:

Mitt Romney refused to say whether he supported the Arizona decision, leading to a comedic exchange between his spokesman and the media accompanying him on a chartered jet specifically for the purpose of hearing his reaction to a ruling on “Obamacare.” Though eager for the press to act as a stenographer for his potential post-ACA triumphalism (planned commentary: “I told you so”), he clearly didn’t feel his gaggle of reporters should be allowed to report on his noncommittal dance around S.B. 1070’s constitutionality. A sampling of what Politico called the “lengthy exchange”:

QUESTION: So does he think it’s wrongly decided?

GORKA: “The governor supports the states’ rights to do this. It’s a 10th amendment issue.”

QUESTION: So he thinks it’s constitutional?

GORKA: “The governor believes the states have the rights to craft their own immigration laws, especially when the federal government has failed to do so.”

QUESTION: And what does he think about parts invalidated?

GORKA: “What Arizona has done and other states have done is a direct result of the failure of this president to address illegal immigration. It’s within their rights to craft those laws and this debate, and the Supreme Court ruling is a direct response of the president failing to address this issue.”

QUESTION: Does (Romney) support the law as it was drafted in Arizona?

GORKA: “The governor supports the right of states, that’s all we’re going to say on this issue.”

QUESTION: Does he have a position on the law, or no position?

And so on, for another thirteen questions and “answers.”

Just reading the transcript is exhausting. Mother Jones reporter Adam Serwer condenses:

As a side note, I’m not sure why Romney and his press flaks weren’t more prepared for questions about the Arizona ruling. Yes, the Republican candidate has been evasive to the highestdegree about his positions on everything from immigration to tax reform, but it’s not as if he wasn’t expecting the Supreme Court to rule on the issue. Given the fact he knew the decision was coming this Monday, Wednesday or Thursday, how hard would it have been to come up with some substantial talking points by Sunday evening? Heck, he needed only to look to Indiana Senate candidate Richard Murdock, who inadvertently jumped the gun last week when he released four video responses to SCOTUS’s health care decision — one for every possibility, from partial invalidation to outright rejection. Oops. The pre-taped statements garnered heaps of ridicule (is Mourdock’s schedule really so packed with VIP events that he’ll be unavailable to comment in real time?), including a mention on Comedy Central’s “Colbert Report,” where the host joked that “[t]he United State Supreme Court has done what none of us expected: The mandate has been struck down, there’s been another recount, and George Bush is president again.” Mourdock may suffer from an inflated ego, but perhaps his strategy would have been a good one for Romney to adopt.

But I digress. Returning to the Twitter feed, a humorous take on the Citizens United decision:

Jonathan Cohn of The New Republic reacts to the three-day delay:

Other gems:

From Fix blogger Chris Cillizza himself:

By far the best Tweet of the day, if by “best” you mean “makes me want to put my head down on the desk and weep.”

For humor in fewer than 140 characters, it’s hard to beat Twitter. Still, the ritual reading of tea leaves preceding any Supreme Court decision makes for amusing reading, as well as for some unintentional hilarity. Court-watchers grasp for the slightest clues about the upcoming ruling, despite the fact that the justices rarely (if ever) tip their hands and the army of SCOTUS clerks produces fewer leaks than the CIA. Recently, the process has been messy and filled with enough strained logic to make it less a decorous reading of tea leaves than a frenzied, gather-round-the-campfire reading of animal entrails. Innocuous public remarks from the justices take on loaded meaning; as Politico reported,

When Justice Elena Kagan joked last week that a ruling she’d written on an Indian tribe-related case was “Maybe not what you’ve all come for today,” some took it as a sign that the court’s liberal wing was in a relaxed mood that might signal a decision to uphold the health care law.

At Slate, former Acting Solicitor General Walter Dellinger mused that Justice Scalia’s diatribe against the Obama administration’s immigration policy may have provided a hint. Dellinger interpreted the Arizona ruling as a major win for the government, writing: “And that is why Justice Scalia is so upset. (Unless … he is being anticipatorily mad about what may happen on Thursday. You think?)”

Well, I could think that. But thinking doesn’t make it so.

Numerous observers have homed in on the seeming likelihood that Justice Roberts will write the majority opinion on ACA. Disregarding the inconvenient fact that Roberts’ authorship is hardly assured in the first place — the assumption rests on the theory that, because Kennedy wrote the bulk of the ruling against S.B. 1070, the responsibility for health care will fall to Roberts — it’s difficult to ascertain exactly what a Roberts-penned decision would mean. Ezra Klein wagers a guess, then offers a caveat:

One theory holds that it points towards a favorable ruling for the administration. If the conservatives had had to entice Kennedy to their side, they would have had to give the ruling to Kennedy to write. But if Kennedy joined the liberals to uphold the law, Roberts would also flip sides so he could write a ruling that imposed some kind of limiting principle on the Commerce Clause Act.

Or maybe Kennedy is with the conservatives and Roberts is simply the guy writing the ruling. Or maybe someone who is not Roberts and also not Kennedy is writing the ruling.

Republican Senator Mike Lee, who previously clerked for Justice Alito, interpreted the matter differently, explaining that Roberts had seemed unpersuaded by the government’s case during oral arguments. As he told the conservative Washington Examiner, “if we could be certain as of this moment that Chief Justice Roberts was the author of the majority opinion of the Court, I would say that would make it substantially more likely – that would be a strong indication – that it is going to be declared unconstitutional.”

However, anyone presuming to know the minds of nine complex, over-educated justices should heed the following warning from the Washington Post:

Of course, even the idea that Roberts is writing the majority opinion comes from what might best be called informed speculation, and should be tempered with the only truly immutable rule about the Supreme Court, a doctrine called No One Really Knows.

As we grind toward Thursday and disguise nervousness with humor, what are the folks at the Supreme Court doing? Proofreading, according to the National Journal, which reports that  the court enlists “professional legal editors review the text to check for style and ensure that all the case citations are correct.” The article cites a former clerk to Justice Kennedy who remarks that “It would be really surprising if there would be changes at this point — we’re three days away. It’s not like they’re changing their minds about how they are going to vote.”

That’s a relief, I suppose. I wouldn’t want the most major decision in recent Supreme Court history — and quite possibly John Roberts’ defining act as Chief Justice — to come down to a couple of coffee-fueled, procrastination-impaired all nighters. That may be how I wrote papers in college, but it’s no way to write a Supreme Court opinion. Still, one can hope that an undotted “i” or an uncrossed “t” sneaks past the proofreaders.

It will certainly make for better Twitter reading come Friday morning.