Wednesday, July 4, 2012

Affordable Care Act

It's a week later and I'm still rife with thoughts and opinions about the outcome of the Supreme Court's decision upholding the Affordable Care Act.

When I saw the outcome last week, I called my mother. She said that she had just heard too. She and I had discussed potential outcomes earlier in the month. She said, "It's just like you said it would be." I responded, "It is nothing like I said it would be." Other than the ultimate outcome of affirmance, I suppose - which I had calculated the chances of that happening at 60 percent (for the entire thing), and at 80 to 85 percent (for all but the individual mandate). I had the vote at 6-3 for all or all-but (possibly 5-4 for all and 6-3 for all-but), with Justice Kennedy being the determining factor and Chief Justice Roberts - looking to his legacy in part, being a careful jurist in part - siding with Justice Kennedy siding with affirmance.

So really, the only thing I guessed correctly was that Roberts was aware of the significance of this vote. I hear it is the first time in a 5-4 vote that he has sided with what they call the "liberal" faction of the Court (Justice Brennan would be horrified by the use of that term for all those four - who are excellent jurists, don't get me wrong - but back when Justice O'Connor became thought of as one of the "liberals" on the Court, the term "liberal" no longer meant what it used to mean).

What I have stated privately to a person or two is my disappointment in Justice Scalia. He is the one who has spearheaded an increasingly expansive view of the Commerce Clause - until now. His rhetoric during oral argument of this case in April (I did read a lot of it) just solidified my growing concern that he is first a political animal and only as an afterthought a careful jurist. It hurts my heart to see this, especially because he is so intelligent. But it does seem these days that he has no qualms about becoming a weapon against fair and careful justice whenever it suits him, regardless of inconsistency with his previous opinions. That is bad for the Court, and bad for the country.

I really do love the law - I respect its process and believe we should be able to trust in it. The fact that Justice Scalia took such a hard right turn away from where he has been headed with his interpretation of the Commerce Clause... well, it deeply disappoints this officer of the court. The other justices - Alito, Thomas, even Justice Kennedy - I believe their dissent in this case. Justice Scalia? I don't believe his dissent, because I sincerely believe - knowing what I do about his past decisions dealing with the Commerce Clause - that he would have affirmed if the ACA were nicknamed Bushcare. That kind of partisanship on the Court is sheer poison to the rule of law in this country.

It all gives me despair - and yet hope too, as I keep realizing how much there is to appreciate about our Chief Justice's approach, especially in light of Justice Scalia's behavior. I still think the law should have been found legal under the Commerce Clause, given the progression of the law surrounding the Commerce Clause in recent years. But I am satisfied with the outcome that the Court did reach. It allows me to maintain hope in our rule of law.

I saw this article this a.m., which outlines a lot of what I believe about this decision about where it was headed. (I disagree with the Chief Justice's summary of what would have happened had the Court affirmed the ACA via the Commerce Clause, by the way - there was a way to allow it, and to interpret "interstate commerce" when it comes to health care that would have justified it under the Commerce Clause while not creating the "slippery slope" that he outlines in his opinion - which is why I thought there would have been a different outcome on that issue.) What is interesting about the article is that the rollback of the Commerce Clause is exactly what the Chief Justice would have been expected to do (and exactly what I would have expected Justice Scalia not to do). So Justice Scalia has cut himself off at the knees, so to speak, by letting there be this 5-4 decision that reigns in the Commerce Clause when he has, in the past, used the Commerce Clause to advance all sorts of federal regulation. It would seem that, perhaps this one time, Justice Scalia's too-clever-by-half approach may get in the way of hard turns he may wish to make in the future when it comes to upholding application of the Commerce Clause in laws he does like.

Anyway, here is a link to the article - it's worth the read:

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