But the spin omits a darker side to the controlling opinion authored by the chief justice—a side that when exposed shows that little has changed in the overall long-term political and constitutional direction of the Roberts Court. That direction remains very much on target, aimed at shifting the balance of constitutional authority away from the federal government, at least as far as social programs are concerned, in favor of more conservative and cash-poor state governments in a return to a pre-New Deal era form of federalism that in the process advances and protects the interests of corporations above all other segments of society....Roberts ruling is a crucial victory for the anti-federalist because it established "the Roberts rule" as a new standard with respect to federal constitutional powers. “All of this represents ...a fundamental departure from how most law professors viewed constitutional law.” The Constitution is a framework of institutional rules for governing. This framework stands in need of interpretation and this falls to the Supreme Court. Landmark decisions establish rules governing "the rules."
So although conservatives are railing against Chief Justice Roberts for selling them out to [fill in favorite conspiracy theory], this ruling was a big victory for conservatives and states-righters.
Read it at Truthdig
The Dark Side of the Roberts' Ruling
by Bob Blum
This is overblown, I think. Not the point that Roberts advanced a view based on the older conception of Federalism, but the claim that this is a landmark decision. We still don't know that. It may become one if Romney wins and Ginsberg retires or dies while Romney is in office, because that will shift the conservative majority to 6-3. But, if Obama wins, and Kennedy and Scalia retire or die, while he's in office, then one will get two new appointees and a 6-3 majority the other way for re-affirming the validity of using the Commerce clause to do expansive things. If that happens the Roberts decision in this case will be an outlier, not a Landmark.
ReplyDeleteI think there are two important impacts of the Roberts decision immediately. First, it makes it more difficult for the Medicare for All movement to develop momentum, because people will say give Obamacare a chance to work, which means 2015-2016 before any serious move toward medicare for All will happen. And second, the decision gives State Governments more leverage to resist the medicaid provisions of the bill. This will slow down its full implementation, and the growth of satisfaction with the bill because so many people will remain uncovered.
This second impact may not be as great as we think, because, turning down the free for 3 years Federal money for expanded Medicaid, and the 90% subsidy for it thereafter, while leaving many of one's own constituents still uncovered will be an unpopular choice. Governors will feel pressure to concede on this point. Conservative Governors who don't, even in Red States will by and large lose in their runs for re-elections, because this choice and its unnecessary victimization of constituents is too stupid even for Red State citizens to swallow. Nevertheless, Roberts may have delayed us seeing the full impact of PPACA for 2 years or so, which, in turn, may further postpone serious consideration of a good solution -- Medicare for All.
But, if Obama wins, and Kennedy and Scalia retire or die, while he's in office, then one will get two new appointees and a 6-3 majority the other way for re-affirming the validity of using the Commerce clause to do expansive things. If that happens the Roberts decision in this case will be an outlier, not a Landmark.
ReplyDeleteRight, that's why many say that the election is really about the future composition of the judiciary, not just SCOTUS. The strategy of the right is to rule through the courts, and that rule is independent of elections, since it limits what the president and Congress can do.
Right now, the Roberts's rule rules and it will stand as long as it is not overturned, just like Citizens United and other ruling that favor corporations over people. At the time of the Roberts and Alito confirmation hearings I was writing over at Daily Kos that is was the real issue and that a de facto coup was in the making, which the Senate Dems had to stop, or else. Now we are seeing the "or else."
"The Roberts' rule rules" is catchy; but I'm not sure in many cases it will apply. Ginsberg questioned it in her concurring opinion, and we know that her other three colleagues won't support it. So, the next time a similar issue comes up, it will come down to Kennedy again, and he's quirky."
ReplyDeleteCU has been solid, of course. But I think that was a clear 5-4 split on ideological lines. The 5-4 split on the ACA was more convoluted.
On health care itself, this ruling doesn't threaten the prospects for Medicare for All at all. And the only reason why it threatens Medicaid expansion is because the D's didn't make it a Federal program.
"On health care itself, this ruling dOoesn't threaten the prospects for Medicare for All at all. And the only reason why it threatens Medicaid expansion is because the D's didn't make it a Federal program.
ReplyDeleteExactly, the quality of state governance is so uneven, Roberts will've done everyone a favor if his decision means future programs are run by the federales instead of state govts.