Nobody, in my opinion, knows the Supreme Court better, and writes about its decisions and law in a more user-friendly way, than Linda Greenhouse, former NYTimes Supreme Court reporter who has a regular column on the Times website; I read every one of her columns, even if it's not a topic I particularly work on or follow.
Today, she blisters the Court in a broadside that essentially says: by agreeing to take up a challenge to the Affordable Care Act, the conservative majority has shown that it is simply a group of "politicians in robes".
Greenhouse has been critical of the conservative majority for a long time. Generally speaking, a main line of argument she often effectively uses is that, particularly Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr., with regular assists from Anthony M. Kennedy and Chief Justice John Roberts, ignore legal precedent and make law based on their own partisan political agenda. As an aside, I was told, some years ago, when it mattered to me intensely what the Justices were thinking, that Greenhouse is very close to Ruth Bader Ginsburg so I often read her columns with a thought that she is channeling Ginsburg (this is just my hunch, no evidence).
Usually, Greenhouse is subtle about the criticism--she never quite comes out with a paraphrased Aykroydian, "Clarence, you ignorant slut" but, by the time you read to the end of her columns, you get the message.
No holding back today:
Nearly a week has gone by since the Supreme Court’s unexpected decision to enlist in the latest effort to destroy the Affordable Care Act, and the shock remains unabated. “This is Bush v. Gore all over again,” one friend said as we struggled to absorb the news last Friday afternoon. “No,” I replied. “It’s worse.”[emphasis added]
She, then explains why, though she disagreed with the 2000 election decision, this is worse:
That’s not the case here. There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law.
Further, the case the court agreed to decide, King v. Burwell, doesn’t fit the normal criterion for Supreme Court review. There is no conflict among the federal appellate circuits. (Remember that just a month ago, the absence of a circuit conflict led the justices to decline to hear seven same-sex marriage cases?) In the King case, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously upheld the government’s position that the tax subsidy is available to those who buy insurance on the federally run exchanges that are now in operation in 36 states.
She, then, explains the state of play at the appellate level and says:
So no, this isn’t Bush v. Gore. This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect. When the court agreed to hear the first case, there actually was a conflict in the circuits on the constitutionality of the individual insurance mandate. So the Supreme Court’s grant of review was not only unexceptional but necessary: a neutral act. The popular belief then that the court’s intervention indicated hostility to the law was, at the least, premature.[emphasis added]
One reason, she says, is that when a statute has some ambiguous language, deference is given to the federal agency implementing the statute:
The 1984 decision that established this deference principle, Chevron U.S.A. v. Natural Resources Defense Council, Inc., is so central to the modern understanding of how the government works that it is among the most often invoked Supreme Court decisions of all time, cited in some 13,000 judicial decisions so far, a number that grows at the rate of about 1,000 a year. The tax provisions of the Affordable Care Act fall so naturally onto the “Chevron deference” landscape that it would take an agenda-driven act of judicial will to keep them out and to conclude that Congress enacted a law that contained the seeds of its own destruction.[emphasis added]
Basically, and not surprisingly, the conservative majority has no interest in living with this principle.
She theorizes that the four Justices who voted against the Act two years ago--Kennedy, Scalia, Thomas and Alito--are trying to put pressure on Roberts who "betrayed" them then in voting with the majority.
And, then, comes the final and, in my mind, devastating paragraph:
So this case is rich in almost every possible dimension. Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.
Of course, this column isn't going to cause these political justice to resign.
But, it is instructive and worth reading the entire column to get terrific insight into how this particular case shines a particular bright line on the abandonment of all pretense by the conservative majority of being guided by the law.
6:10 PM PT: To repost a comment I made below:
I happen to agree that Obamacare is insufficient; he and the Clintons and others totally fucked up by not implementing "Medicare for All" and instead handing huge profits to the insurance/drug companies, instead of killing them
BUT BUT BUT BUT...that is not the point of this diary, and it is respectfully hijacking the theme.
The point here is simple; whatever you think about Obamacare, the conservative Supreme Court is, for political reasons, trying to kill it--and I'm going to take a wild guess it's not because those wingnuts wants "Medicare for All".
If you want to debate whether Obamacare is good or bad, by all means do so--but this diary is not the place.