When you think of the Patient Protection and Affordable Care Act, "hilarious" is probably not what comes to mind. But some proponents of the law have been so naïve about it over the last three months that I really can't help but laugh. Below are four acts in the comedy of errors.
Oops #1: Tunnel vision
A few weeks before the trial I started seeing articles pop up with headlines about the Obama Administration courting an "unlikely ally" in Antonin Scalia. Their reasoning had to do with a marijuana program that Scalia once voted to uphold. I wish I remembered the details, but it wasn't how you'd expect Scalia to vote if you forgot that Scalia mostly reasons from Constitutional procedure, not an issues-based conservative orthodoxy. The Administration found similarities between that case and its own, and hoped it might win Scalia to its side. That could have turned out to be inspired and shrewd, but it didn't work. In oral arguments, Scalia was the ringleader of conservative skepticism, bringing down the house with his jokes about the law, the case, and even the liberal justices' questions. I doubt if the Administration thought wholistically about who it was dealing with—one of the feistiest conservatives in the history of the court.
Oops #2: Projecting
A week after oral arguments, I read this article on Politico about what to expect during the trial. I was tickled by the quote from Thomas Goldstein, who founded SCOTUSblog: “[The justices have] been waiting for this case for years. They have thought a ton about this. There will not be a question asked…There will be six hours of points made by the justices to each other.” The oral arguments were extremely lively, and Goldstein was totally right. The article's last point, “Will the Court punt?,” explained that the court could put off jurisdiction until 2015 under the Anti-Injunction Act. Everybody was asking if they would—well and good. But the article ended with a quote from Walter Dellinger, a former acting solicitor general in the Clinton administration, to wit that the justices could use the AIA to get out of ruling now “if the court were to think that we’re heading into a very dangerous thicket here of handing down a decision in the middle of a presidential campaign.”
Hello? Did Mr. Dellinger forget that the Supreme Court has never lost sleep over presidential politics? In one case, the Chief Justice not only discomfited an outgoing President, but was wily enough about it that he got the Supreme Court out from under Executive thumbs forever. Something about a Marbury. To imagine that the Supreme Court walks on tiptoes around elections is to miss the point of having a Supreme Court in the first place. Our judges are appointed for a reason, and cases like this are precisely it. Mr. Dellinger saw implications for the President's reelection in this case (and he's not alone), but that doesn't mean the justices found this as troubling as he did. The law, not elections, is their job, and they love a challenge. (They have to.) They wouldn't turn down the “blockbuster of blockbusters” unless they had to, and legally there was no need.
Oops #3: The Solicitor General
Why Donald Verrilli was unprepared for the justices' questions may wind up as one of those mysterious historical oddities that make professors shrug, but his performance was dismal. When the big day came, the Administration's lawyer was tongue-tied. His answers to Justices Scalia, Roberts, and Kennedy were so inept that at some points the liberal justices stepped in to make his arguments for him. Normally the justices only ask questions during oral arguments, so the press took notice of this. Papers and blogs were full of commentary for over a year that could have helped Mr. Verrilli anticipate counterarguments, but evidently he didn't see them coming. Either he expected to sail through on a zephyr of enlightened consensus, or he had one very bad day. Either way, odd.
Oops #4: Blustering
This one doesn't technically count unless the law is struck down. But again, a misunderstanding of judicial independence spurred some unwise comments, this time from the President himself. He expressed confidence that the Supreme Court would uphold the Act, and opined that not doing so would be judicial activism. He had nothing to gain from making that statement in advance. It wasn't memorable enough that if his side wins, everyone is going to pull it out and say, "Look, he told us so." If his side loses, he'll just look silly. The Court has already voted in secret: it's either going to uphold the law or strike it down (or strike the important parts of it down). As the opinions are written and circulated, some justices may change their minds. But most of them will vote without regard to public opinion or the President's unofficial lobbying. Justice Thomas gave the public buzz surrounding the trial the importance rating of a fly in the room. The President is no different.
None of this is to predict an outcome as much as it is to make a point about how the outcome happens. The Administration may win, and in fifty years our kids may think it was all inevitable and normal. But on the twin traditions of judicial independence and respect for the law, the Administration has made a clown of itself. If it wins this case, it will win in spite of itself. That is not to say its position was never worth considering, but it never explained why when the time for reason superseded the time for rhetoric. If such shamming gets by without heavy logical supplements from the justices, it will be a bad day for thinking.
But I don't think that will happen. Meanwhile, good show.
No comments:
Post a Comment