A Massive Victory for Liberalism

[ProSense]

A Massive Victory for Liberalism

Joey Fishkin

Simple question: Who won yesterday?

Let’s begin with a useful distinction of Jack’s and Sandy’s: between the ordinary, low politics of winning and losing elections and enacting laws, and the high politics of constitutional meaning and constitutional change. In simple low politics terms, Obama won yesterday. The two-word headline version of the day’s news is: “Obamacare Upheld.” That is as far into the story as a lot of voters will go. That’s why many conservative commentators and actors in low politics, such as Michelle Bachmann on the steps of the Supreme Court, immediately attacked the ruling in the harshest terms as a defeat and a betrayal. They think they lost—and in terms of low politics, they did. This ruling will help bolster the President’s case for re-election by underscoring the legitimacy of his central policy achievement, whereas a ruling the other way would have lent support to many different lines of political attack against him.

On the other hand, a number of elite conservative commentators, who are more engaged with high politics than low, claimed a major victory. It is easy to see why. In his Commerce Clause discussion, Chief Justice Roberts has, at a minimum, reaffirmed and reinvigorated the Lopez/Morrison line of Rehnquist Court limitations on the Commerce power whose future after Raich had seemed in doubt. He has also taken a major whack at the Spending Clause (in a holding that won seven justices!)....Thus George Will wrote that “the conservative legal insurgency against Obamacare has won a huge victory for the long haul.” So, in high politics terms, looking beyond the outcome of the case itself, was NFIB v. Sebelius essentially a victory for the Federalist Society and its constitutional project?

No.

The decision was the most important court victory for liberalism in my lifetime. For all that Chief Justice Roberts gave conservative movement activists in his compromise ruling yesterday—and he gave them a lot—he gave liberals something even more precious...The solution the Chief found was to hold that the mandate can fairly be read as no command at all, but rather as an incentive: you either buy insurance, or you pay a tax. Your choice...This kind of compromise does more than just give a boost to Rehnquist-era precedents limiting the Commerce Clause. It strikes a broader libertarian pose, boldly blocking any future federal forays into mandatory broccoli-buying. And it does so with considerable swagger, stating bluntly, of a nation in which the government can command the purchase of insurance: “That is not the country the Framers of our Constitution envisioned.” Listen to Roberts carefully: he is talking liberty talk, not just enumerated powers talk. And yet, at the same time, by leaving undisturbed the functional provision of the law—5000A(b), which says you have to pay a penalty on your income taxes if you don’t have insurance—the Chief Justice hands supporters of Obamacare an essentially complete policy victory.

<...>

Stepping back from constitutional doctrine, what happened yesterday? Basically, one really important thing happened. The Affordable Care Act was upheld essentially in its entirety. This means we are headed for a long-term change in the basic social bargain in the United States. Once this law has been in place a few years, it will simply become politically impossible to go back to a world in which large swaths of the population were regularly denied access to health insurance because of pre-existing conditions, as they are today. The glib libertarian vision of young men (and it is always young men) free to go without health insurance (and freeload if they get sick, of course) will gradually lose its grip on the public consciousness. Americans of the future will simply come to expect that they are going to have health insurance—either they will literally have insurance coverage, or else they will be paying a tax that entitles them to a de facto catastrophic policy in the sense that if they get really sick, they can always buy insurance then, and cannot be turned away. This will be part of our social compact.

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http://balkin.blogspot.com/2012/06/massive-victory-for-liberalism.html

[ProSense]

1. Kick!

This is our little secret. Don't tell the wingnuts.

[ProSense]

2. Gee

I hate celebrating alone.

[greytdemocrat]

3. A Victory for the Left.

For the People. Like Morgan & Morgan...

[aint_no_life_nowhere]

4. Meanwhile yesterday in Freeperland

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[alcibiades_mystery]

5. I would go further and say that Roberts actually ends up affirming liberal Commerce Clause usage

in a way the Rehnquist court never could. In order to draw the line on regulating non-activity (his weak reasoning on the mandate), Roberts had to affirm that the Commerce Clause did indeed allow regulation of activities. This admission ends up affirming the Commerce Clause as liberal Congresses have used it in a backhanded manner, since to say no to X (the mandate) he had to say YES to Y (all other Commerce clause uses); the problem for conservatives is that they've spent the last 40 years trying to say no to Y. Roberts backed himself up into a backdoor affirmation.

[ProSense]

7. Good points. n/t

[ProSense]

9. Here's another

good point:

One place Roberts Outsmarted Himself is....

...by upholding the ACA under the taxing power, he thereby rendered the holding on the limits of the commerce clause vulnerable to a court with one less conservative justice treating that aspect of the opinion as dicta (dicta are parts of a written SCOTUS decision that are unnecessary to the foundation of the result actually reached, and therefore merely in effect, commentary rather than binding precedent). The conservative wing of the court has used this tactic frequently over the past 30 years to incrementally chip away at decisions off previous more liberal SCOTUS decisions.

This is yet one more reason the 2012 Presidential election is so important, as will be 2016: to strangle Roberts "incremental radicalism" in the crib via SCOTUS appointments.

http://www.dailykos.com/comments/1104692/46626759#c9

[FarLeftFist]

6. K&R!

[ProSense]

8. Night kick! n/t

[Scurrilous]

10. K & R