Supreme Panic and other short notes

Should ObamaCare supporters panic? That was the big debate on the legal blogs after the Supreme Court’s five conservative judges asked a bunch of skeptical questions during oral arguments. Jeffrey Toobin says panic, Steve Kornacki says not to.

So far I’m siding with Kornacki. For years legal specialists have been writing that you can’t predict how judges will vote by listening to their questions, so I’m surprised so many of them think they can this time.

Asssuming that the pessimists are right, though, the Court could be headed for a Brown v Board of Education-scale ruling: If they limit the Commerce Clause, all kinds of previous rulings (including ones written by the five conservative judges) come up for review. If they decide that the Medicaid expansion is an illegal coercion of the states by the federal government, the whole federal/state relationship changes.

Two points are worth making here: First, a partisan Supreme Court is a dubious asset politically, and striking down ObamaCare would seal the impression that this Court is Republican. If ObamaCare is struck down, we’re back to worrying about the 50 million uninsured, and Republicans continue to have no plan for covering them.

Second, this is another reminder that institutions are neither good nor bad, liberal or conservative, they’re just institutional. For decades, liberals relied on the Supreme Court to limit the damage done by conservative state legislatures, and many of us got it into our heads that a powerful Supreme Court was good. On the flip side, many of us have it in our heads that global institutions like the WTO are bad because they are dominated by corporate interests. Well, maybe the WTO is also just an institution. We need to figure out how to make it work for us rather than against us, the way conservatives have done with the Court.

While we’re talking about the Court and ObamaCare, a number of liberals are making their usual mistake when they answer what has become known as the Broccoli Argument: If Congress can make us buy health insurance, can it make us buy broccoli?

There are literal legal answers to this question – BTW, the literal answer is “no” – involving the limitations of the Commerce Clause, but they miss the point. Don’t make them unless you’re trying to convince a lawyer. Politically, Akhil Reed Amar has the better answer:

The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office.

I think that’s called “democracy”.

About that Santorum “bullshit” incident. I don’t really care what words the guy uses, but imagine the outcry if Obama lost his composure like that. Think of all the lies that have been told about Obama – about his citizenship, his religion, his loyalty to the United States, and a hundred other issues that Rick Santorum never has to worry about. And yet he never snaps.

While we’re on that theme: Imagine the outcry if it’s 2007 and Nancy Pelosi says the Bush generals are lying about what they need. But Paul Ryan apologizes and its all OK now.

In an April Fools’ Day op-ed, David Javerbaum introduces the “quantum theory of Mitt Romney“.

Before Mitt Romney, those seeking the presidency operated under the laws of so-called classical politics, laws still followed by traditional campaigners like Newt Gingrich. Under these Newtonian principles, a candidate’s position on an issue tends to stay at rest until an outside force — the Tea Party, say, or a six-figure credit line at Tiffany — compels him to alter his stance

But Mitt is the first “quantum candidate”, and is governed by different rules.

In much the same way that light is both a particle and a wave, Mitt Romney is both a moderate and a conservative … The act of observing cannot be separated from the outcome of the observation. By asking Mitt Romney how he feels about an issue, you unavoidably affect how he feels about it. More precisely, Mitt Romney will feel every possible way about an issue until the moment he is asked about it, at which point the many feelings decohere into the single answer most likely to please the asker.

There’s more.

Salon’s Michael Lind explains how the rich took over airport security, getting their own faster lines. He then makes this modest proposal:

Why don’t we just make the new class-based discrimination official? Instead of leaving it to airlines and other corporations to construct the new apartheid piecemeal and informally, let the government issue a Premium Elite Citizen Card, valid for multiple purposes. For the right price, a price carefully calculated to be unaffordable by the majority of Americans, those willing and able to pay would be allowed to cut in line, not only at airports, but everywhere: at taxi stands, movie theaters, restaurants. All they would have to do is flash their Premium Elite Citizen Card to force the rabble to step aside and make way.

David Wong of follows up his viral 6 Things Rich People Need to Stop Saying with an almost equally worthy 5 Ways Modern Men are Trained to Hate Women.

It amazes me how misunderstood hate crime laws are, even by people who ought to know better — like NYT editor Bill Keller:

In most cases, hate crime laws take offenses that would carry more modest sentences — assault, vandalism — and ratchet up the penalty two or three times because we know, or think we know, what evil disposition lurked in the offender’s mind. Then we pat ourselves on the back. As if none of us, pure and righteous citizens, ever entertained a racist thought or laughed at a homophobic slur.

Bill: It doesn’t take a genius to understand that painting “Bob loves Mary” on an underpass is a less serious crime than painting swastikas on a Jewish elementary school.

One additional point I left out of my summary of Glenn Greenwald’s With Liberty and Justice for Some: With all the discussion of ways to cut government spending, how come nobody ever proposes that we stop locking up non-violent criminals for long prison terms? Other countries don’t, and it seems to work for them.

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  • Kim Cooper  On April 2, 2012 at 11:41 pm

    “how come nobody ever proposes that we stop locking up non-violent criminals for long prison terms?”
    Because now that prisons are a for-profit business, the people in charge want more and more people in prison because they make more money that way.

  • Kim Cooper  On April 3, 2012 at 12:12 am

    Doug — your link to David Wong’s article links to page two.


  • By Soul Debt « The Weekly Sift on April 2, 2012 at 9:49 am

    […] Supreme Panic and other short notes.  The Supreme Court heard oral arguments on ObamaCare this week, and liberals panicked. Should they? And what’s the right answer to the Broccoli Argument? A quantum theory of Romney. Massive solar energy spills. Hate crime laws misunderstood. “Cracked” strikes again. And more. […]

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