Today's Per Curiam (PC) decision striking down MT's campaign finance law removes the last lingering doubts about what the same 5 Supremes will officially do tomorrow. The ACA is as dead as Newt's campaign.
The fact that the MT Supremes were slapped down may not be a tell, but the fact that a PC was used to slap them down is. PC's tend to be unanimous, and they are supposed to address matters that are not in serious dispute. They're not supposed to decide highly contentious matters 5-4. There were no briefs on the merits, nor was there oral argument. MT was told: Do not pass go, do not collect $200. It's virtually certain that the WH and the Hill Dems (who did at least get the formality of full briefings and oral argument) will be treated similarly tomorrow.
We're observing a consistent pattern here dating back to the 5-4 vote issuing a stay in B v. G on 12/9/00. As I noted here yesterday that stay (and the formality of issuing an opinion 3 days later after a Kabuki Theater oral argument) were a watershed for the Court as an institution. 5 members decided a highly disputed presidential election by judicial fiat on highly tenuous grounds that were contrary to the express judicial philosophies of the majority. Those 5 further decreed that, contrary to centuries of Anglo-American jurisprudence, their decision would not serve as stare decisis in future cases.
It took me months to get over that decision for a host of reasons, including inside knowledge about some of the sordid events that took place in my profession in my state during that highly disturbing period. I had been a member of the FL Bar for 17 years at that point, and it had been 20 years since I had entered UF law school. I've never looked at my profession the same way again.
Citizens United was of a piece w/ B v. G. There was the same disregard for precedent, lack of textual support, and basic arrogance in that decision. Over a century of previously estalished law was casually tossed out the window in a 5-4 decision. 3 of the same jurists from the B v. G majority were in this majority, and the CJ was a member of the Bush/Cheney legal team.
It's not surprising in the least that the same 5 tossed out the MT statute. It's a little suprising that they did so w/o going through the formality of a briefing and oral argument process (much less the formality of issuing a decision). There's a clear annoyance in this PC opinion--those rubes in MT are wasting the valuable time of the Citizens United majority.
Given the approach taken in B v. G, Citizens United, D.C. v. Heller (striking down DC's handgun law), and other cases, anyone paying attention should've realized that this Court might take issue w/ the ACA. The constitutionality of Uncle Sam mandating individuals to buy a good or service raises some questions. More important, there was reason to be concerned that at least 4 Supremes would have a problem w/ it.
Arguing the merits of this case and arguing the legal tactics and strategies employed in arguing it are beyond the scope of this diary. The point of this diary is that we currently have a highly activist SCOTUS containing 4 justices who are highly committed to remaking the law to their liking. There is a 5th who likes to cultivate the image of a moderate but who, when push comes to shove, generally joins the other 4 on critical cases.
Having that kind of SCOTUS would be bad enough under normal circumstances. We have, however, an even more partisan House majority that is highly skilled at the politics of destruction. We have an almost as partisan Senate minority that is highly skilled at the politics of delay and obfuscation. 2 of the 3 branches of our government, IOW, are in fundamental disrepair at a time when our country is in fundamentally dire straits.
As Chris Hayes recently stated:
We now operate in a world in which we can assume neither competence or good faith from the authorities. The consequences of this simple, devastating realization define American life.
Addressing the influence of FIRE, the MIC, and other institutions are other issues for another day. It must be conceded at this point, however, that 2 of 3 branches of our govt currently fit Hayes' proscription. At some point, the 3d branch needs to wake up to that reality.
It's instructive to recall that there was a prior Dem POTUS in even more dire times who faced a similar SCOTUS. He also faced a Senate w/ far too many members of his own party who were fundamentally opposed to key elements of his legislative agenda. I'm not suggesting that the current Dem POTUS try to pack the Supremes, nor am I suggesting that the WH lead an intraparty purge in the 2014 Senate elections.* I am, however, suggesting that the WH needs to start waking up to just how broken our governing institutions have become.
We have looming conflicts on the extension of W's tax cuts and on sequestration. We have opponents who view compromise as weakness. We have a SCOTUS that's operating in dangerous territory. It's time to move past the lofty rhetoric of "there are no red states or blue states" and start facing political realities as they exist.
*The Teahidists have taken that concept to heart, and it's long past time for us to do so, too.