A Hack Supreme Court Is Bad News

With the Supreme Court decision about the fate of Obamacare coming down Thursday, there is a lot of hand-wringing on the left about the state of American institutions. James Fallows says looking at the last decade-plus of jurisprudence, this represents a "long-term coup:"

It's a simple game you can try at home. Pick a country and describe a sequence in which:

• First, a presidential election is decided by five people, who don't even try to explain their choice in normal legal terms.

• Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.

• Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.

• Meanwhile their party's representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation -- and appointments, especially to the courts.

• And, when a major piece of legislation gets through, the party's majority on the Supreme Court prepares to negate it -- even though the details of the plan were originally Republican proposals and even though the party's presidential nominee endorsed these concepts only a few years ago.

How would you describe a democracy where power was being shifted that way?

Just for example.

I've been arguing with bmaz on Twitter all week about this sort of thing. He says it's totally bogus, that the individual mandate objection is legally legitimate, and that liberals need to quit whining when judges rule against us. I happen to strongly disagree about the legal objection (see here and here), but I'm not a lawyer so let's set that aside.

I'll grant that ideological decisions are usually fine, and with us forever in any case. The problem with the Obamacare decision would be the level of radical hackishness, a very different concept. Hacks have little actual ideology aside from a willingness to do anything to promote the interests of whoever's in power on their team. John Yoo is a good example.

The most troubling thing about the prospect of overturning the individual mandate is that it's a conservative idea. It was proposed by the Heritage Foundation (!), and was part of Bob Dole's healthcare plan back when conservatives felt like the had to give a crap about the uninsured. Which is to say, from any sort of reasonable perspective, there is not a consistent ideological objection to Obamacare that comes anywhere close to justifying the conservative howling about the death of freedom. Conservatives have quite clearly whipped themselves into a frenzy over something that, should President Romney have passed it, they would have accepted without question.

I don't mean exactly to cast aspersions on their sincerity, by the way. This is probably some combination of cynicism, motivated reasoning, and increasing ability to believe strongly in whatever is on Fox News, and I'm not sure which is worse.

But in any case a Supreme Court full of people "willing to pretend they don’t speak English" in order to advance their party's agenda would be one more step down the road to a failed state. There's a reason Egypt is a corrupt basketcase, and it has a lot to do with the fact that their highest court does things like this. That's the kind of country where "there is no such thing as law, there is only power," and as Kevin says:

If the court does overturn the mandate, it's going to be hard to know how to react. It's been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can't think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock—but it was also a unanimous decision and, despite FDR's pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don't like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that's pretty explicitly chosen up sides in American electoral politics.

(On a side note, there's probably nothing in the near future that would restore more faith in the American system than a solid majority upholding Obamacare. Here's hoping Roberts realizes that.)