How Did They Get It So Wrong?

by Dave Schuler on March 29, 2012

The Wall Street Journal editors echo the point I made a few days ago:

So far the larger liberal reckoning hasn’t been as nuanced as the High Court’s, as evidenced by the media mugging of Solicitor General Donald Verrilli. Liberals castigated his performance during oral arguments Tuesday and all but blamed him for any ObamaCare defeat.

Mr. Verrilli may not be Daniel Webster, but he was more than competent. The problem isn’t that he’s a bad lawyer, it’s that he is defending a bad law with the bad arguments that are the best the Administration could muster. Liberal Justices such as Sonia Sotomayor all but begged him to define a limiting principle on the individual mandate and therefore on federal power. He couldn’t—not because he didn’t know someone would ask but because such a principle does not exist.

Greg Sargent says that he’d underestimated the virulence of the “conservative bloc of the Supreme Court”:

Many people have blamed Obama Solicitor General Donald Verrilli’s poor defense of the law for the sudden jeopardy Obamacare finds itself in, and there’s no denying he was unprepared to answer questions that we’ve known for months would be central to the case.

But there’s another explanation for the botched prediction: Simply put, legal observers of all stripes, and Obamacare’s proponents, including those in the administration, badly misjudged, and were too overconfident about, the tone, attitude and approach that the court’s conservative bloc, particularly Justice Scalia, would take towards the administration’s arguments.

E. J. Dionne is upset with the judicial activism of the “conservative bloc” of the Court:

Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.

Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?

and bemoans the abandoning of democracy in favor of judicial dictatorship.

Social Security was enacted into law in 1935 with bipartisan support. Medicare and Medicaid came into being 30 years later, also with bipartisan support. The PPACA in contrast was passed on a purely partisan vote. However, its undemocratic nature doesn’t end there. The representative who voted for the PPACA were elected from gerrymandered districts and even in those they were elected by, at best, simple majorities of the minority of registered voters who actually voted. Construing that as democracy is a stretch.

We do not have a democracy or even a narrow majoritarianism but a constitutional order in which, at least in theory, the Congress is constrained by the constitution to act within its enumerated powers. The Court is now deciding if the Congress has done that in the case of the PPACA.

That was the Congress’s choice. It could have elected to avoid the present situation in any number of ways. If you don’t like policies being decided by the Supreme Court, blame the Congress.

Update

Neil Snyder says the same thing a bit more strongly:

The title of Dionne’s piece in today’s Washington Post captured my attention: “Activist judges at the Court”. In a nutshell, he says that conservative justices on the Supreme Court are poised to abandon democracy and in its place substitute a “judicial dictatorship” by striking down Obamacare. Nothing could be further from the truth, and even suggesting that Obamacare was the product of the democratic process is dishonest.

“Legislative overreach” is the term that opponents of Obamacare typically use to describe the problem with the bill. That’s fair as far as it goes, but the process by which Obamacare came into existence wasn’t just legislative overreach. It was thuggery at the highest levels of our government that resembled a form of dictatorship, but it was Democratic Party dictatorship. I’ll go one step further. It was Democratic Party dictatorship where precious few Democrats’ voices were heard. You could even say that Barack Obama, Harry Reid, and Nancy Pelosi gave us Obamacare since no other legislator was even allowed to read the bill before votes were cast. We now know that Obama, Reid, and Pelosi didn’t read the bill either, so in the truest sense, it was totally ignorant Democratic Party dictatorship.

{ 29 comments… read them below or add one }

PD Shaw March 29, 2012 at 12:39 pm

Dione is being hysterical. You do not have to agree with the challenges to recognize there is a real case and controvery here, and its certainly not unusual for the courts to examine the legislative history or consider whether it would be more judicicious to strike down part or all of a law.

I welcome further editirorials from Dione on the subject of judicial restraint in other areas. I certainly think the SCOTUS should have stayed out of that stupid conflict btw/ Congress and the executive about the Jerusalem passport. Pure political crap.

Dave Schuler March 29, 2012 at 12:49 pm

I don’t think he’s defending democracy at all. I think he’s defending the right to perpetual re-election.

The Congress of the last dozen or so years have been the most cowardly, spineless, foolish bunch of entitled idiots I can recall. The PPACA is the Pelosi-Reid Congress’s desperate stab at healthcare reform without endangering political contributions.

You do not have to agree with the challenges to recognize there is a real case and controvery here

It’s very clear that the progressive intelligentsia did not think that there was. Talk about hubris!

Janis Gore March 29, 2012 at 1:14 pm

Why the heck would liberals, who’ve been complaining about the conservative court since Bush vs. Gore be optimistic about this body of law, which has been denounced from both left and right?

Andy March 29, 2012 at 1:36 pm

I just have to shake my head. To people like Dionne (and his opposites on the right), judicial decisions you don’t agree with are “judicial activism.” But Dionne goes even further than that since the Justices haven’t even ruled yet. Apparently merely making arguments and asking difficult questions is now “judicial activism.” What sophistry.

The PPACA was a “lowest common denominator” piece of legislation that was structured the way it was because that was the only way to get it to barely pass. The sausage-making wasn’t pretty but it turns out the sausage tastes bad too.

PD Shaw March 29, 2012 at 1:58 pm

@ Janis; I think Bush v. Gore is a good example of judicial activism, though even some of its critics have said the court had to make some decision, any decision. What was entirely suspect about the case was the infamous statement that the case cannot be cited as precedent in the future. One of the things that keeps the members of the court honest is that they cite principles that they are expected apply to future cases consistently. By saying we won’t be bound by these principles in the future, they undercut their legitimacy.

I voted for Gore, so maybe I’m just biased. Though knowing now that the election results were being debated while the 9-11 attacks were in motion does make me glad that the election was stopped at some point.

PD Shaw March 29, 2012 at 2:11 pm

Dionne mentions Citizens United, which certainly he has written about. I wonder if he wrote about oral arguments in that case as well, the one where the administration explained that the Constitution permitted it to ban books under the same principles being advanced to ban the Hillary pay-per-view movie?

Janis Gore March 29, 2012 at 2:17 pm

From what I’ve read, the justices could justify a conservative decision in this case because they don’t want to repeat that “we will not be bound by these principles in the future.”

Is the health care market “unique”?

Andy March 29, 2012 at 3:12 pm

The thing about Bush v. Gore is that if Gore had won the decision, he still would have lost the election. Maybe that would have been better politically.

PD Shaw March 29, 2012 at 3:24 pm

I’d look at it differently. We’ve had a few important commerce clause cases in the 90s, which didn’t really arise out of partisan laws:

Crime Control Act of 1990
Portions unconstitional: Kennedy, Scalia, Thomas
Constitutional: Ginsburg, Breyer

Violent Crime Control and Law Enforcement Act of 1994
Portions unconstitutional: Kennedy, Scalia, Thomas
Constitutional: Ginsburg, Breyer

Criminalization of Home Grown & Consumed Medical Marijuana
Unconstitional: Thomas
Constitutional: Kennedy, Scalia, Ginsburg, Breyer

By my reading, Thomas, Ginsburg and Breyer have pretty consistent views on the commerce clause and I would be shocked if they did not vote as expected, and it doesn’t really have much to do with Obama, partisan politics or the nature of the healthcare market.

C’mon, Thomas is pro-weed, Dionne!!!

PD Shaw March 29, 2012 at 3:26 pm

Andy, what do you mean Gore still would have lost the election? Was that because the count he was seeking would not have put him over the top?

Andy March 29, 2012 at 3:39 pm

PD Shaw,

Yes. The recount that was in progress before it was stopped by the SCOTUS would have likely resulted in Gore losing.

The real problem wasn’t with SCOTUS IMO, but the Florida county governments, state government and the Florida Supreme Court. If they’d had their shit together, it never would have landed in SCOTUS’ lap.

Janis Gore March 29, 2012 at 3:52 pm

I have a nephew named “Chad” and I have a terrible time remembering his name. Maybe I developed a mental block?

Janis Gore March 29, 2012 at 4:22 pm

Back on topic, these commentators have been saying for months that the government would “have to thread the needle very carefully” when they argued this legislation.

Should that be the case when we are discussing what is, in effect, a major change in the expected behavior of citizens?

steve March 29, 2012 at 6:15 pm

“The representative who voted AGAINST the PPACA were elected from gerrymandered districts and even in those they were elected by, at best, simple majorities of the minority of registered voters who actually voted. ”

Amended that for you Dave.

Steve

Dave Schuler March 29, 2012 at 6:20 pm

Sure. But that’s not relevant.

The issue is that the majority didn’t allow the minority a role in the formation of the law. And went ahead and passed it with power politics. The “these were Republican ideas” argument founders on the timing. They were Republican ideas only in the sense that they came from a conservative think tank a couple of Congresses ago.

I would add that my take is supported by the antipathy or, at best, tepid support for the PPACA from the public at large. Polls have consistently shown that people like certain ideas in it but don’t like others. I should also add that I don’t like safe, gerrymandered districts regardless of who it’s safe for.

Andy March 29, 2012 at 7:25 pm

steve,

How about you look at what happened in non-gerrymandered districts? Pelosi sacrificed the party’s moderates and her own majority to get Obamacare passed – hope it was worth it.

Mercer March 29, 2012 at 7:34 pm

“The issue is that the majority didn’t allow the minority a role in the formation of the law”

Their only suggestion was medical liability law changes. As David Frum pointed out the GOP was not interested in bargaining or shaping the law. They wanted a” Waterloo” defeat for Obama. Obama’s choice was a Dem health law or nothing. The GOP still has no plan to do anything about our healthcare system’s rising costs. People who insist a health care law has to have bipartisan support are seeking the impossible with today’s polarized parties.

When a President and his party are elected and pass the law the campaigned on that is not thuggery. It has how democratic politics is supposed to work.

The right for decades has denounced “judicial activism”. It not surprising that liberals like Dionne call them out for wanting to use the court to throw out a law they don’t like. It is not a “judicial dictatorship” but it is very hypocritical of the conservatives.

PD Shaw March 29, 2012 at 7:59 pm

Obama campaigned for an insurnce mandate?

Janis Gore March 29, 2012 at 8:33 pm

For a fact, I never wanted a pony because I’d then have to deal with horseshit.

michael reynolds March 29, 2012 at 9:43 pm

Mercer’s right. I think it’s nonsense to complain about Democrats ramming this down anyone’s throats. Attempts to reach out to the GOP went nowhere. The GOP was not interested in solving actual, real-world problems. It still isn’t. A substantial portion of the GOP is simply opposed to anything that negro in the White House proposes. The rest of the party doesn’t have the balls to stand up to their extremists. So there was never going to be a compromise, there was never going to be a meeting of the minds, there was never going to be responsible governance because the GOP was never, under any circumstances, going to agree to anything. Ever.

Dave, I think you make the mistake of believing that because you are rational that others must be as well. This GOP is not rational, is not in fact capable of rationality. Is the result bad law? Probably. Because that’s what happens when reason negotiates with madness.

Drew March 29, 2012 at 10:57 pm

Fail to refill your Librium prescription, Michael?

Andy March 29, 2012 at 11:29 pm

Obama’s choice was a Dem health law or nothing. The GOP still has no plan to do anything about our healthcare system’s rising costs.

The President’s choice was to issue some unrealistic guidelines then hand the messy task of drafting the bill off to the house leadership.

Secondly, the PPACA doesn’t do anything about rising costs – if the Democrats had a plan to tackle rising costs they left it sitting on the shelf and gave us the PPACA instead.

Is the result bad law? Probably. Because that’s what happens when reason negotiates with madness.

Really? So I guess Congressional Democrats are crazy mad? Perhaps you’ve forgotten, but the reason it took so long to finally pass a bill is because the House leadership under Speaker Pelosi couldn’t get enough Democrats to vote for it. The Democrats had 59% of the seats in the house yet it took a year to get a bill to pass. How is inability to get a bill her own party can pass the fault of the racist crazy people in the GoP?

And really, when you look at what happened to Simpson-Bowles today, her strategy actually makes sense. Maybe she judged there was no possibility for a bipartisan bill because to get Republicans would mean losing more Democrats. A truly bipartisan bill (one where both parties hold hands and jump off the cliff together) would probably have crashed-and-burned like Simpson Bowles. So Speaker Pelosi tried to keep the liberal base and creep toward the center to get enough votes for passage. That was her choice, and it worked, but the GoP is irrelevant to that strategy, crazy or not.

Dave Schuler March 30, 2012 at 5:44 am

A truly bipartisan bill (one where both parties hold hands and jump off the cliff together) would probably have crashed-and-burned like Simpson Bowles. So Speaker Pelosi tried to keep the liberal base and creep toward the center to get enough votes for passage. That was her choice, and it worked, but the GoP is irrelevant to that strategy, crazy or not.

That’s very much the way I see it.

In response to Michael’s analysis, I think the timing of things is a little different than he remembers. The incipient Obama Administration had already gone out of its way to antagonize Republicans before Republican antipathy had solidified. They just assumed it. That might have been right but they did absolutely nothing to cultivate Republicans.

Steve March 30, 2012 at 1:56 pm

Wrong. They wasted months on the Gang of Six. They gave up the public option in an attempt to get Snows on board. Name one thing that the GOP would have supported in a health reform bill. Be prepared to defend that by historical precedent.

Steve

Dave Schuler March 30, 2012 at 2:11 pm

What you’re describing is an attempt at giving the appearance of negotiating without actually negotiating. Olympia Snowe is an outlier in the Republican Party not part of the leadership.

I’m not a Republican and I don’t know what the Republican leadership would have demanded other than that it undoubtedly would have been something the Democratic leadership wasn’t willing to give. And that’s the crux of the situation. It isn’t “Oh, the mean Republicans” it’s an impasse between Democrats who don’t think they need to negotiate and Republicans who don’t want to negotiate.

Steve Verdon March 30, 2012 at 4:38 pm

The GOP was not interested in solving actual, real-world problems.

Neither were the Democrats, as evidence I give you PPACA.

Steve Verdon March 30, 2012 at 4:43 pm

A truly bipartisan bill (one where both parties hold hands and jump off the cliff together) would probably have crashed-and-burned like Simpson Bowles. So Speaker Pelosi tried to keep the liberal base and creep toward the center to get enough votes for passage. That was her choice, and it worked….

Politically speaking? Yeah it worked. BFD. Look what we got, something that will do at best damn little, at worst exacerbate the problem…well assuming it isn’t struck down.

And as Dave points out these things happen about 1x/decade. So we wont be going through this again any time soon. Maybe in 2023 when the problems will be even bigger and harder to fix.

Andy March 30, 2012 at 10:28 pm

They gave up the public option in an attempt to get Snows on board.

No they didn’t. They gave up the public option because the bill wouldn’t pass with it – The public option didn’t have the votes within the Democratic caucus. Negotiations on whether to include the public option in the bill did not include Republicans, it was a debate between different factions of the Democratic party. In short, the public option split the party and so Pelosi had to drop it.

Drew March 30, 2012 at 11:33 pm

I don’t suppose anyone could for at least a second – amidst the hurling of invective- consider that conservatives held a fundamentally different point of view? A point of view that acknowledges that many markets are so complex and dynamic that the history of monolithic regulatory control – or as I call it Rube Goldberg solutions – inevitably leads infestation by rent seeking lobbyists and pigs feeding at the trough?

Nah. Better to call someone a poopie or racist while preening for the title of most caring.

Pres. Obama may rue the he haughtily invoked “I won.”

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