Blue Mass Group

Reality-based commentary on politics.

  • Shop
  • Subscribe to BMG
  • Contact
  • Log In
  • Front Page
  • All Posts
  • About
  • Rules
  • Events
  • Register on BMG

Supreme Court readies Bush v. Gore II on health care

March 27, 2012 By Bob Neer 26 Comments

If anyone had any doubt that the Supreme Court is the unelected third branch of government subject to the same rules of politics as the other two branches, Bush v. Gore, which put George W. Bush into office at the behest of five Republican justices on the panel, should have laid it to rest.

Here we go again. “The Supreme Court’s conservative justices sharply attacked the insurance mandate that is at the heart of President Obama’s healthcare law, strongly suggesting Tuesday they are prepared to strike it down as unconstitutional,” the LA Times reports.

Republican Chief Justice Roberts did his best to boost publicity by scheduling the longest oral arguments in 45 years: an easy headline, even though the actual time allotted makes a mockery of any claim that there will be more than perfunctory discussion. This is legal theater, played for headlines and managed by the GOP, and it is working: “Supreme Court expresses skepticism over constitutionality of health care mandate.”

To maximize political punch, the Republicans who control the Court accelerated this case, brought by their PAC ally the National Federation of Independent Business (“In 2010, 25 of its members, all Republican, were elected to the 112th Congress”) into court, so that the decision will be released for maximum impact on the November presidential elections.

The intricate discussions on the SCOTUS blog, while entertaining, largely miss the point. The merits of this care were decided 4 November 2008. Most of what is happening now is strategizing, reading of political winds, and calculations of advantage.

The decision is not foregone: there is many a slip ‘twixt cup and lip, and the Chief Justice’s likely goal — a powerful refutation of legislation approved by both houses of Congress and a President elected by 69 million Americans — may not play out perfectly. At its base, however, the Court is engaged in a political process, and it should be understood as such, no more and no less.

Please share widely!
fb-share-icon
Tweet
0
0

Filed Under: User

Comments

  1. whosmindingdemint says

    March 27, 2012 at 4:53 pm

    what this court’s views are on election tampering?

    Log in to Reply
  2. Christopher says

    March 27, 2012 at 6:37 pm

    There are those who legitimately believe that the Congress is limited to certain enumerated powers and that this doesn’t cut it. I don’t agree, but if the Court majority are a bunch of strict constructionists, this law is toast.

    Log in to Reply
    • jconway says

      March 27, 2012 at 7:59 pm

      I don’t agree, but if the Court majority are a bunch of strict constructionists, this law is toast.

      Except for the fact that they have allowed for the trampling of individual rights in the name of expanding executive power and using the justification of Congress passing the law to wax poetic about legislative and executive supremacy. The entire logos of the originalist movement is that the Warren Court went farther than the elected legislative or executive branches or public opinion were willing to go on a host of social issues from gay rights to abortion to civil rights to the death penalty to criminal justice issues.

      Let us quote the Pontificus Maximus of Originalism, Justice Antonin Scalia defending democratic majorities and legislative and executive supremacy on a host of issues:

      Abortion fromCasey

      The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. As the Court acknowledges, “where reasonable people disagree the government can adopt one position or the other.

      The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges–leading a Volk who will be “tested by following,” and whose very “belief in themselves” is mystically bound up in their “understanding” of a Court that “speak[s] before all others for their constitutional ideals”–with the somewhat more modest role envisioned for these lawyers by the Founders.

      “The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .” The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).

      Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration (“There is a limit to the amount of error that can plausibly be imputed to prior courts,” ante, at 24), with the more democratic views of a more humble man:

      “[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).

      Defending democratically enacted sodomy laws in Lawrence

      Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change.

      While I obviously disagree with Scalia on these cases and presumably on the health care act, it would seem that he is conceding, much as Chief Justice Roberts would, that the role of the court is to simply call ‘balls and strikes’ and take a step back and let the democratic process work itself. When this logic is applied to social issues, Scalia has no problem with same sex marriage that is democratically enacted or abortion rights that are democratically enacted,he opposes the ‘imperial judiciary’ imposing its will to overturn the will of the people. In both cases argues that the courts have been politicized and have a responsibility of affirming democratic decisions rather than overturning them.

      Particularly his paen to Lincoln and Madison and the Federalist Papers he would recognize that the judicial branch has a solemn duty to defend the supremacy of the legislative and executive branches which are democratically enabled and pursue laws that are democratically enacted, albeit indirectly. For Scalia to overturn health care reform would be, under his own logic and that of his school of constitutional thought, a gross act of judicial activism and a massive act of hypocrisy.Ditto Roberts.

      Log in to Reply
    • Bob Neer says

      March 27, 2012 at 9:22 pm

      If it is overturned, it will only be by fabrication of new law by a cabal of radical activist judges.

      Log in to Reply
      • centralmassdad says

        March 27, 2012 at 10:08 pm

        of Supreme Court losers for 75 years. I’m sure that you didn’t mind the court wading freely into politics in the 60s and 70s.

        Maybe if your party was a little bit smarter about Presidential elections you wouldn’t have a conservative majority on the court to contend with. In 2000, you nominated a toaster, who then spent a can’t lose campaign running away from one of only 3 Democrats in the entire 20th century to win re-election, and the only one in the post war era. Now your party is seemingly ready to bail on Obama, because if he somehow tried harder there would have been a magical re-alignment of Congress to allow an even more unpopular single payer or public option bill to pass. For most of my life, Republicans have barely had to try.

        I am not sure what should be the more embarrassing reversal: Romney trying to pretend Romneycare doesn’t exist, or Massachusetts liberals, who assailed Romneycare– when it seemed like a Republican accomplishment– SPECIFICALLY BECAUSE of the mandate now trying to pretend that it is so firmly embedded in legal precedent as to barely warrant notice.

        Log in to Reply
        • Bob Neer says

          March 27, 2012 at 10:19 pm

          This is a reality-based blog, CMD, not a Republican-based website. Check the O’Bama links at the top of every BMG page: this website is a huge supporter of the President. We criticize him on occasion because we can keep more than one idea in our heads at the same time. That’s something grown ups do. Gore and Kerry would given the GOP the spanking reason demands if BMG had run their campaigns. In fact, helping the Democrats stand up is one reason we started this blog, and since we did — not that there is any direct connection, just noting the fact — the ridiculous know-nothing/religious fundamentalist modern Republican Party has lost the White House and the Massachusetts State House. As to judicial review, as I’ve said many times, I am not a fan. The Court should decide specific, individual cases and controversies, it does not constitutionally and should not be allowed to assume, anything more: strict construction.

          Log in to Reply
          • petr says

            March 28, 2012 at 8:26 am

            … I’m jus’ gonna have to give this an Oh… SNAP!!!

            Log in to Reply
  3. whosmindingdemint says

    March 27, 2012 at 7:50 pm

    call this court strict constructionists after granting personhood to corporations.

    Log in to Reply
    • David says

      March 27, 2012 at 8:14 pm

      the Court granted personhood to corporations long ago.

      Log in to Reply
      • Bob Neer says

        March 27, 2012 at 9:20 pm

        It was not granted by the Court, but by a memo written by a businessman working for the Court.

        Log in to Reply
        • David says

          March 27, 2012 at 9:29 pm

          that’s where it first showed up. But the Court itself has certainly adopted the “corporations are people, my friend” view of things long before Citizens United.

          Log in to Reply
          • Bob Neer says

            March 27, 2012 at 9:37 pm

            First, I am not sure our esteemed collaborator whosmindingdemint has Citizens in mind: “this court” may simply mean “the Supreme Court.” There are a lot of courts out there, after all. Second, Romney’s comment, although subsequently spun to good political use, was not that corporations are themselves people, but that they are made up of people.

            Log in to Reply
            • David says

              March 28, 2012 at 10:40 am

              – an even more absurd notion than the Court’s, if that is possible. Corporations, as artificial legal constructs, of course are not “made up of people” – they have no corporeal existence whatsoever. They may well employ people, and be owned by people, but they are not “made up of people.”

              Log in to Reply
              • centralmassdad says

                March 28, 2012 at 12:48 pm

                an interesting discussion that we have had before, but I still disagree with this.

                It is– among other things, granted– a mechanism for large numbers of people to act in a coordinated manner.

                If David has a lemonade stand, and has free speech rights, and Bob sells ice from his ice machine, and has free speech rights, then David and Bob still have free speech rights when they work together in a partnership. David and Bob still have their rights, but they also have the right to speak together, for their partnership.

                I do not see why those rights are somehow lost if they organize themselves differently. When the corporation speaks, it is people that cause it to speak, and those employees have free speech rights, and it speaks on behalf of people that own it, all of whom also have free speech rights.

                Log in to Reply
                • centralmassdad says

                  March 28, 2012 at 12:49 pm

                  Sorry about that.

                  Off the soapbox now. I know we have been through this before. If the search function was better, I would just post a link to that discussion.

              • centralmassdad says

                April 11, 2012 at 8:28 pm

                I know this is a very old diary, but I saw something today that is germane to a discussion we have been having on-and-off for a few months.

                Bloomberg published a list of the 500 largest corporations in 1812, which prompted the NPR Planet Money team to inquire about the origins of the concept, and talked to Richard Sylla, a professor at NYU Stern School of Business.

                Sylla says that the concept originated in Europe, as something granted by special act of government– the king– to someone or a group of someones who gave the king some kind of favor, and that the grant usually came with a legal monopoly. Like the East India Company. Those not on a first name basis with the monarch did not enjoy limited liability, monopoly, or anything else.

                Early corporations in the US created similarly by special act of government, but the concept was modified to comport with American ideas of equality: the ability of anyone to form a corporation is the American innovation.

                See Planet Money.

                I don’t know if they made this a podcast (I am always weeks behind) but I hope they do.

                Log in to Reply
  4. whosmindingdemint says

    March 27, 2012 at 9:52 pm

    and the Citizens United ruling as an example of judicial activism run amock. But Southern Pacific v. Santa Clara is a good example of how insidious these things can be; interpreting a margin note as law because the court knew it couldn’t be part of the actual decision.

    Log in to Reply
  5. thinkliberally says

    March 27, 2012 at 10:14 pm

    Political.

    If a “President Romney” had been behind passing this law, it wouldn’t have even gotten to the Supreme Court. The only reason this is even being debated is because the President is a Democrat.

    Log in to Reply
    • Bob Neer says

      March 27, 2012 at 10:22 pm

      I agree!

      Of course, in this it is no different from all Supreme Court cases. The Court is a political institution: a branch of the government, which is a political construct. It is in this sense identical to the Congress and Executive, except that it is unelected.

      Log in to Reply
      • thinkliberally says

        March 27, 2012 at 11:09 pm

        …figured I’d sum it up. 🙂

        Log in to Reply
  6. whosmindingdemint says

    March 27, 2012 at 10:23 pm

    yup

    Log in to Reply
  7. whosmindingdemint says

    March 28, 2012 at 1:02 pm

    Does a corporation become a person at conception or birth?
    If I sue David’s for selling Lemonade that killed my cat or polluted my drinking supply, why is he protected by limited liability? Does his personhood give him superpowers?
    How many votes does the corporation get David’s, Bob’s and the “corporation?”
    My vote is private when I’m in the ballot box, but I have to be a citizen with an address to vote. How about a corporation?

    Log in to Reply
    • centralmassdad says

      March 28, 2012 at 1:44 pm

      Does a corporation become a person at conception or birth?

      Ha, ha. The corporation begins when it is organized and formed.

      If I sue David’s for selling Lemonade that killed my cat or polluted my drinking supply, why is he protected by limited liability? Does his personhood give him superpowers?

      He is protected by limited liability because the statute on business organizations so provides. So, not superpowers, but powers granted by statute. I do not see that the statute requires that the people forming the corporation waive their constitutional rights to free speech or anything else in order to form the corporation. I am not certain that it even could.

      How many votes does the corporation get David’s, Bob’s and the “corporation?”
      My vote is private when I’m in the ballot box, but I have to be a citizen with an address to vote. How about a corporation?

      I’m not sure what you are asking here. The owners of the corporation vote to cause the corporation to do X or Y. David and Bob vote in elections for government office, and the corporation does not.

      I do not think that you mean to suggest that constitutional rights are limited to voting citizens; this would be a significant departure from our tradition. So I am left with: so what?

      My questions for you are:

      1. Is it the case that corporations have no constitutional rights at all? Put another way, can property owned by a corporation be taken by the government for public use without compensation? Should corporations be capable of contract, and be capable of using the courts to enforce contractual rights?

      2. If not, then it must be the case that corporations have some rights but not others. In that event, one must articulate a distinction more meaningful than “we like it this way.”

      Log in to Reply
      • jconway says

        March 29, 2012 at 8:06 pm

        I agree with you 100% that corporations have certain constitutional rights, and I would even agree with you and your support of Citizens United that free speech is a right even corporations are entitled to. Where I completely disagree is the contention, which apparently the Solicitor General (your nearly batting 0-2 buddy!) never even discussed, that political donations are even an act of speech in the first place. If I am a big telecom business, and I give a ton of money to conservative Congressman to run ads opposing abortion so they can get re-elected and vote against telecom regulation, am I really engaging in political speech regarding abortion or an economic transaction? I would argue that big telecom corporations have no opinions affirmative or negative whatsoever regarding abortion, but that they do have opinions regarding telecom regulation. Why can’t the state at least regulate the content of ads so we know who is paying for them and for what purpose? I’d be a lot more willing to go along with overturning if McCain Feingold if an alternative regulation regime at least forced Candidate X to say ‘this anti-abortion ad was paid for by Giant Telecom Company X’ so the corporation is directly tied to a partisan cause it is supposedly endorsing.

        A great real world example is Target, their donations to anti-union reps who were also anti-gay led to a massive boycott of Target by the gay community and totally ruined their street cred as the liberal alternative to Wal-Mart. Laws that at least force those disclosures and bring more transparency to the process would seem to be sufficient deterrents to corporations donating to candidates and taking stances and candidates openly admitted to accepting those contributions. If it was truly sacred political speech why all the secrecy?

        Log in to Reply
        • petr says

          March 30, 2012 at 7:24 am

          and I would even agree with you and your support of Citizens United that free speech is a right even corporations are entitled to.

          … the equal protection clause? I’ve never understood the corporate right to free speech: if corporations are composed and comprised of people, who enjoy the right to free speech, then doesn’t the amplification, indeed, even the multiplication, of their speech as a corporation constitute impermissibly malapportioned speech…

          If we believe in the principle of one citizen, one vote why doesn’t this extend to one citizen, one voice? Why do the Koch Brothers, for example, get to amplify and multiply their individual speech through the speech of the numerous corporations they control?

          And what of a janitor, say, in the employ of one of the Koch Bros corporations but who has a diametrically opposed outlook? Is this permissible? How can the speech of one or two, particular, people who are part of the corporation be the voice of the corporation at the expense of another particular person?

          Log in to Reply
          • Mr. Lynne says

            March 30, 2012 at 10:40 am

            … if money is speech and for corporations money comes from profits, then isn’t the corporate use of money for speech really perscribing (or hijacking) the speech of non-corporate persons when no such speech intent can be inferred? That is to say, when your corporation donates money to a PAC (a practical use for money as speech) and that money came from me, aren’t they superimposing onto the speech value of my money in a way that I never intended, and isn’t that an violation of my money-as-speech rights?

            Log in to Reply

Leave a Reply Cancel reply

You must be logged in to post a comment.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Recommended Posts

  • Progressive Mass Shouldn’t Back Stupid Primaries (3)
  • There Is Not A Chance the White House is Happy With This Timing (3)
  • Promises made, promises kept (1)
  • Real “Center” is Economically Nationalist/Culturally Moderate (1)

Recent User Posts

Progressive Mass Shouldn’t Back Stupid Primaries

August 12, 2022 By jconway 7 Comments

There Is Not A Chance the White House is Happy With This Timing

August 10, 2022 By terrymcginty 8 Comments

Site issue: Unable to reply to comments

August 10, 2022 By SomervilleTom 2 Comments

Why do PUKES oppose $35 insulin for diabetics with private insurance?

August 8, 2022 By fredrichlariccia 3 Comments

Promises made, promises kept

August 8, 2022 By fredrichlariccia Leave a Comment

Schedule F

August 7, 2022 By johntmay 4 Comments

Recent Comments

  • SomervilleTom on Progressive Mass Shouldn’t Back Stupid PrimariesTommy Vitolo was directly responsible for the Brookline…
  • SomervilleTom on Progressive Mass Shouldn’t Back Stupid PrimariesThis comment exemplifies why I'm done with "Progressive…
  • Keith Bernard on Progressive Mass Shouldn’t Back Stupid PrimariesDon't get mad at Progressive Mass because Tommy Vitolo i…
  • fredrichlariccia on Progressive Mass Shouldn’t Back Stupid PrimariesThe other half of Wakefield (Precincts 4 - 6) is in the…
  • fredrichlariccia on Progressive Mass Shouldn’t Back Stupid PrimariesThe 9th Essex district James and I share as fellow Wakef…
  • fredrichlariccia on Progressive Mass Shouldn’t Back Stupid PrimariesYou hit the nail on the head here. Namely: Holier than T…
  • SomervilleTom on Progressive Mass Shouldn’t Back Stupid PrimariesI appreciate you writing this diary. This primary seems…

Archive

@bluemassgroup on Twitter

#mapoli

dembinskis Jennifer Debin @dembinskis ·
17m

Shameful. The proposal brought to the board did not incorporate any input taken during the public comment period. State education board approves controversial proposal raising MCAS graduation requirements https://www.bostonglobe.com/2022/08/15/metro/state-education-board-vote-today-raising-mcas-graduation-requirements/?event=event25 @BostonGlobe @DianeRavitch #mapoli #maedu

Reply on Twitter 1559294770907938827 Retweet on Twitter 1559294770907938827 Like on Twitter 1559294770907938827 1 Twitter 1559294770907938827
headlineoptics Headline Optics @headlineoptics ·
18m

What’s in the new Massachusetts cannabis bill? – WGBH https://www.masspolicyreport.com/2022/08/15/whats-in-the-new-massachusetts-cannabis-bill-wgbh/?utm_source=dlvr.it&utm_medium=twitter @masspolicy #MApoli #Massachusetts

Reply on Twitter 1559294494737977344 Retweet on Twitter 1559294494737977344 Like on Twitter 1559294494737977344 Twitter 1559294494737977344
kevineconnor Kevin Connor @kevineconnor ·
20m

You almost have to respect the audacity of this column. #mapoli
https://www.bostonglobe.com/2022/08/15/opinion/maura-healey-odd-prosecution-dean-tran/

Reply on Twitter 1559293943371763712 Retweet on Twitter 1559293943371763712 Like on Twitter 1559293943371763712 Twitter 1559293943371763712
tanisha4ma Tanisha Sullivan, Candidate for MA Sec. of State @tanisha4ma ·
26m

If @BillGalvin4MA hadn’t BLOCKED a lawsuit in 2017 challenging the state’s requirement that eligible voters register 20 days before an election, we would have same-day voter registration today. His reason? “Paperwork.” This moment demands so much more #mapoli #democracy

Reply on Twitter 1559292453995307008 Retweet on Twitter 1559292453995307008 1 Like on Twitter 1559292453995307008 4 Twitter 1559292453995307008
votehalbert David Halbert @votehalbert ·
30m

Don't forget, tonight's the night to join us and learn how @cdempc is going to use the Auditor's role to make state government more equitable, innovative, and effective for people in every corner of the Commonwealth. See you at 7. #mapoli #bospoli

Chris Dempsey @cdempc

Join Mayor @wutrain and me this Monday, 8/15, at 7PM for a *Virtual Meet & Greet* and grassroots fundraiser. All are invited! Thank you to @votehalbert @mdmcclos @RachelPoliner @JeremyComeau and so many other amazing Co-Hosts!

#mapoli #bospoli

http://www.actblue.com/donate/081522virtualmg

Reply on Twitter 1559291605655457794 Retweet on Twitter 1559291605655457794 1 Like on Twitter 1559291605655457794 3 Twitter 1559291605655457794
mysteriousrook Ed Lyons @mysteriousrook ·
34m

Yes! Go help @CommonWealthMag continue to save #mapoli from narrative-driven politics and policy coverage. I enjoy the regular thrills and befuddlement* I get from them.

(* I sometimes think, “what the heck is that?” when they write about some policy thing I’ve never heard of.)

MassINC @MassINC

We're hiring!🚨 @CommonWealthMag is seeking an experienced journalist to join our small team where creativity and teamwork are important. See the full job description, benefits, and instructions to apply here. https://buff.ly/3cH6IGq #hiring #mapoli

Reply on Twitter 1559290385549168645 Retweet on Twitter 1559290385549168645 1 Like on Twitter 1559290385549168645 1 Twitter 1559290385549168645
Load More

From our sponsors




Google Calendar







Search

Archives

  • Facebook
  • RSS
  • Twitter




Copyright © 2022 Owned and operated by BMG Media Empire LLC. Read the terms of use. Some rights reserved.