Response to elleng (Reply #7)
Sun Mar 25, 2012, 11:33 PM
Alcibiades (5,059 posts)
18. Students of judicial politics
should pay little attention to what judges say and more attention to what they do. There are always legal arguments and precedent on both sides of an issue: moreover, it is possible to constuct an argument that appears consistent with almost any given "judicial philosophy" on either side of an issue.
Any vestige of faith that I ever might have entertained that the court gave a rat's ass about stare decisis, the constitution, its own institutional integrity or the public's opinion of it ended with Bush v. Gore. Those five revealed themselves to be purely partisan when the stakes are high enough, and three of them are still sitting. If they are embarassed enough by their own decision, they can simply declare whatever post hoc rationalization they tack onto the foregone partisan conclusion they issue "nonprecedential."
The conservative movement is today, and has been since the Reagan era, in lockstep, from K-Street to Congress to the SCOTUS. They are all reading off the same daily talking points. Since both possible nominees have declared that the PPACA is unconstitutional, it seems unlikely that they would undermine them in this way before the election.
I'd love it if the very smart people in the Obama administration are right and that there's no basis to declare the PPACA unconstitutional, but these are the same folks who failed to make sure that there was a severability clause in the final product, so there's no reason for optimism on that score. To me, the notion that Scalia, Thomas, Roberts and Alito care about ideas or principles more than their favored partisan outcome seems quaint. I don't have any money on it, but it seems to me that the real question is whether they strike down the whole thing or simply the mandate, but it should go without saying that they will find a way to enable Mitt Romney to point to the PPACA as an example of unconstitutional caesarism on the part of Obama this fall.
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Students of judicial politics
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