A Peek Across the Political Multiverse

Related Post Roulette

51 Responses

  1. Avatar Jaybird
    Ignored
    says:

    Man, I was hoping to find out what the Libertarians were saying.

    I imagine that the Liberal Justices would have also asked questions about *WHICH* insurance companies would be allowed to sell insurance to folks, whether there’d be barriers to entry that this pluralopoly would effectively make it so that new (perhaps woman-owned, or minority-owned) insurance companies would never stand a chance…

    Anyway, this was an awesome, funny, and thought-provoking post.

     Report

  2. Avatar Creon Critic
    Ignored
    says:

    I’m not a fan of either Justice Scalia or Justice Thomas, but I can say that they have a fully formed vision of constitutional interpretation – as do the other justices on the court. Originalism vs. living constitution approaches genuinely lead to different perspectives on what the constitution means and exactly how expansive federal government power is – not in straightforward areas like 6 year terms for Senators, but where the US Constitution uses capacious language and (by some lights) relies on the succeeding generations of Americans to fill in the details: cruel and unusual punishment, due process, and so on and so forth. Simply changing Rs and Ds in the elected branches does not shift these longstanding schools of thought on constitutional interpretation. Whether we should be looking to 18th century dictionaries and English Common Law or aim to be more sensitive to the needs of a 21st century welfare state – just two strands of live arguments in constitutional interpretation.

    For a more specific picture, I’d point to the Rehnquist court’s federalism rulings: United States v. Morrison excising parts of the Violence Against Women Act and United States v. Lopez on the Gun-Free School Zones Act of 1990. Once again, I disagree with the rationale of the conservative majority in both instances (5-4 rulings both), but something beyond mere Rs and Ds is at play.Report

    • Avatar Renee in reply to Creon Critic
      Ignored
      says:

      Creon – thanks this is exactly the conversation I was hoping to have.  In general, I think there is more than R and D to the judgments.  But … I wrote this to see if I could convince myself otherwise.  And I was successful on my own weak mind.

      To what extent to these theories simply justify what the justices want to do?  Could Thomas uphold the mandate using an originalist interpretation if it served to eliminate Medicare?  I am not enough of a legal theorist to have a good answer for this – that’s why I am throwing it out there.  Could Breyer find a living constitution argument and still strike it down?  I bet they could.

       

       Report

      • Avatar Creon Critic in reply to Renee
        Ignored
        says:

        This dissent was brought up in another thread, but Thomas’ dissent in Lawrence v. Texas comes to mind. He remarks that were he a Texas legislator he’d vote against the law. But his position as a justice means his job is to do something different. I understand how it simplifies things to say Republican appointed justices go one way and Democrat appointed justices break a different way – but I give some credence to the idea that the justices imagine themselves to be doing something different: attempting to reason their way through using the particular set of tools jurisprudence permits (the text of the Constitution, precedent, the history and tradition of the US, pragmatic considerations consequences, etc.). Another case that comes to mind is Justice Stevens’ concurrence in Medellín v. Texas.

        Also, I wouldn’t underestimate the import of the ideas about what it means to be a judge, the independence of the judiciary, judicial review and such. These are people who’re longstanding participants in a particular legal culture, an idea of what being on the court means. They’ve been instructed and educated as to the long tradition they’re following in. While from the outside looking in it is easy to level accusations of, “Hey, you just decided the way you wanted the case to turn out anyway.” I think I tend to give the justices a bit more leeway when they say – well here’s my explanation of why I see this case as turning out the way I voted. That’s one thing we don’t get from the political branches with the consistency and rigor that’s required of the court – an extended explanation of precisely why a certain outcome results. Once again, not to say that I agree with the rationales that result, I think both Thomas and Stevens were wrong to decide the way they did in both the instances I’ve cited. But altogether I don’t think the justices would just flip sides to suit the kinds of narrow political interests you’re describing.Report

        • Avatar Renee in reply to Creon Critic
          Ignored
          says:

          CC – Thanks for your input.  I am happy to see that you have faith in the judiciary.  I agree that what you write is the way it should be and I like to think of the culture the same way.  But – I also want to pin you down on what you are really saying here:

          Your claim is that in my alternate branch of history, the conservative justices would vote to strike down the mandate and the liberal justices would vote to uphold the mandate (even though the overall bill will dismantle the medicare/medicaid system as we know it)?  Swing justices swing, so I won’t try to pin you down there.  If I am misrepresenting you, or you want to be more specific, please chime in with what you think the votes would be.Report

  3. Avatar North
    Ignored
    says:

     I enjoyed it, though I think the Counter-factuator has a few screws loose. Even at the towering heights of their Bush-hatred Democrats would have alternated in their response to a healthcare reform proposal from the right between blinking incredulously and leaping to participate in the plan and drag it to the left. Lockstep filibustering and refusals to offer proposals? Hogwash! The left has been waiting a century for this discussion; they’d have been hyperventilating and offering policy laden proposals in exchange for their Senate and House votes like nerds pitching their scripts to Shatner at a Star Trek convention.Report

  4. Avatar greginak
    Ignored
    says:

    Maybe i’m just missing it, but isn’t this just fancy version of “both sides do it.” Do we need a counter factual presentation for that? Don’t we have plenty of perfectly good versions of that already that do the job?Report

    • Avatar Renee in reply to greginak
      Ignored
      says:

      I’m not sure what “it” is that I am claiming both sides do.  The setup is to ask, in politically charged cases, why justices vote the way they do.  I tend to agree with Creon Critic justices tend to have legitimate theories of constitutional interpretation.  But I got to imagining a case where congressional conservatives had their way with health care including a mandate.  And I could easily imagine the justices switching sides to the political converse.  I surprised myself with that result.  I wondered if other people would agree or disagree.  Hence the post.

       Report

      • Avatar greginak in reply to Renee
        Ignored
        says:

        Okay. It read to me as suggesting D’s in congress would have acted teh same way R’s did during the HCR debate. They would have refused to cooperate and put any sort of HCR in place. Given D’s, in reality, put in place the R’s HCR circa 1994 that seems a bit much for even a wild counter factual.

        Do judges have certain philosophies that guide them. Certainly. Do they create ruling that serve to do whatever they want because it suits them. Well yes they do that.Report

      • Avatar BlaiseP in reply to Renee
        Ignored
        says:

        Once a SCOTUS justice is in place, they’re beyond political influence.   True, a few justices, notably Clarence Thomas and a few others over history have made their voices heard in political circles.   It’s also true a few justices have surprised folks, Justice Kennedy for instance, has usually voted along conservative lines but not always.

        But the politics of SCOTUS aren’t like the politics of Congress.   They’re more akin to conservative and liberal theology.   The ACA verdict won’t be considered on the basis of what the Republicans or Democrats think.   The Roberts / Scalia / Alito / Thomas quartet are always singing in four part harmony.   Look at Chamber of Commerce v. Whiting.  Though immigration is a Federal matter, the several states can pass any law they like about it.  McDonald v. Chicago?   Goes the other way, Second Amendment takes precedence over local law.  Connick v. Thompson.   Prosecutor screws up, conceals evidence in violation of the Brady law?   No problem.

        The Conservative Sweeney Todd Barbershop Quartet is on a roll just now.   They’re a power unto themselves.   It doesn’t matter who comes before the court, they have their own agenda.   Sometimes Kennedy sings some falsetto harmony but really, I don’t see that Barbershop Quartet singing requests.Report

        • Avatar Renee in reply to BlaiseP
          Ignored
          says:

          Clearly they aren’t influenced by politics in the same way that politicians are influenced by politics.  You liken it to theology.  I can see that.  The question is whether the theology is of process or outcome?  I think the mandate is interesting in the sense that it could serve conservative or liberal ends.  Do the justices really apply the law blindly?  I am not sure I really believe that anymore.

          I didn’t mean to suggest that they would vote according to the wishes of congress or the president – I think they are independent.  But outcome driven nonetheless.Report

          • Avatar BlaiseP in reply to Renee
            Ignored
            says:

            That’s pretty much exactly how I’m thinking.   Once it’s reached the dizzying heights of SCOTUS, Process does sorta meet Outcome.  Maybe you could expand on what you mean by process versus outcome.  I tend to jump to hasty conclusions when I hear either of those words.

            If Alito and Scalia’s opinions are any guide, they want to vastly truncate the powers of the Federal Government in the spirit of the bulk of the Constitution, before any of the Amendments come into the picture, especially the powers of the Executive.  That’s their Summa Theologica.

            But then, I’m biased.   Here I shall bang my little spoon against the bottom of my saucepan and say, yet again, Congress and the Executive have deferred far too many troublesome decisions to the courts.   SCOTUS, quite correctly, is sick of it.   Lots of folks are sick of Activist Courts:  nobody walks out of a courtroom happy after a correct decision.

            Taking the baby to Solomon’s Court usually ends up with that baby cut in half.   Case in point:  for generations, Congress wouldn’t address racial inequality.   Finally it ends up in SCOTUS with the Brown v. Board of Ed case — didn’t work out very well for anyone.   Sure, it overturned Plessy v. Ferguson, but Clarence Thomas farts in indignation every time he thinks about Brown, his whole raison d’etre is to overturn the Brown decision.

            That’s the problem with a good decision.   Brown could only address de-jure segregation.   In the wake of Brown came the Bakke decision and schools have been quietly re-segregating ever since.  Nobody seems to care.   Only Congress could enact the Civil Rights Act and the Voting Rights Act.   If the Conservative faction of SCOTUS seems intent upon pruning back the ever-expanding tendrils of Federal authority, they’ve got excellent reasons for doing so.   It’s not the business of the courts to make laws and Liberals know it, too.

            Congress, and especially the Senate, has gotten lazy.   Congress will not do the business of the nation.  Politically unpopular legislation just don’t get made any more.   Decisions like Citizens United show how ridiculous all this has become:  Congress could clean up campaign finance in a heartbeat if it wanted — but nobody dares to act.   The Roberts Court ruling on Citizens United basically said hey, we’re getting sick of this.   There’s a difference between judicial restraint and judicial abdication.   You want to drag your political mess into this courtroom, you guys know about the First Amendment, there’s your decision.  Don’t expect us to tell you quarrelsome babies how to clean out your pig pen.

             Report

            • Avatar Renee in reply to BlaiseP
              Ignored
              says:

              I’m using the terms process and outcome pretty naively.  In my freshman civics class mentality, justices should be concerned almost entirely with what I am calling process:  applying what the law says to the case at hand regardless of the outcome.  I, of course, understand that there are different interpretations of what the law is and how it should be interpreted.  But in the hypothetical, the mandate is exactly the same as in the real PPACA, but the outcome is different. So I would naively hope that the votes would be the same between the worlds.  I am not convinced yet that that is the case.

              I think you are correct to point out that in the real world, especially at the Supreme Court, that distinction may be impossible and it is a muddle of both – partly thanks to congress’ dereliction of duty.

              All that being said, I would invite you to play the game and take a stab at how the justices would vote in my alternative branch of history.  I’m curious how you think it would fall out.Report

              • Avatar BlaiseP in reply to Renee
                Ignored
                says:

                I see the Barbershop Quartet ruling against the not-a-tax $ 2000 “fine”.   I’m going to reach for a strange old case, the Penn Mutual case and Article 1 Section 8.   This sort of “fine” doesn’t seem to be in those enumerated powers:  it was a political dodge to avoid calling this de-facto deductible/fine a tax.  It’s an individual mandate, which lies within the power of the Federal government.   Penn Mutual is an old case, pre-New Deal, but I think it still holds water.  Here’s why:

                Two concepts emerge:  an ancient, obscure (and frankly racist!) order from the hand of George Washington, making every able-bodied white man purchase a weapon and ammunition.   That’s the only individual mandate ever to make it into law.   Trouble is, that mandate was never brought before a court.   It still stands.    The other concept arises from the Sixteenth Amendment and a huge bushel basket full of rulings on tax law.

                But here’s where I think it gets interesting.   The Individual Mandate may have already touched the third rail and brought itself in contact with taxation, though better thinkers have concluded otherwise.

                Penn Mutual is about how life insurance companies recognise income for tax purposes, but in any question of this sort, we must follow the money and the authority for collecting taxes.   Penn Mutual says it’s not the Sixteenth Amendment, but Article 1 Section 8 which defines the power of Federal taxation.   Can the government make a law which obliges someone to pay another private entity?   If so, and let’s first try out that first line of logic, could the government then collect taxes on that payment?   Wouldn’t the “Individual Mandate” then encompass some form of taxation in the process?    A state can oblige motorists to purchase liability insurance but can the Federal government oblige us to purchase health insurance?   The “Individual Mandate” isn’t actually part of the tax code, which makes it neither fish nor fowl at the present time.   Some courts think it is a tax, others don’t.   If the Individual Mandate had been set up as a direct tax, this mess wouldn’t be at SCOTUS now.

                This leads to the Tax Anti-Injunction Act, which keeps nuisance suits from obstructing the IRS from assessing taxes.   If the Individual Mandate is a tax, cases can’t be brought for many years to come.

                Both sides are going for the biggest gun on the rack:  US v. Salerno .   Obama as respondent would like to use it because it grants justification for government action in the interests of the community.   The petitioners like it because of it raises an extremely high bar for such justification.   Salerno is a tough case to read.   Everyone sees in it what they want to see, a prima facie challenge to a law, simply denying the right to ever make such a law because no such enumerated power existed.

                The Barbershop Quartet likes to rule from the Constitution, not from the Amendments.   Obama’s strongest argument is a very old one:   the General Welfare clause from Article 1 Section 8, propping up that position with US v. Butler and especially Steward Machine Company and as a personal little dig at Scalia, South Dakota v. Dole, where he voted with the majority to allow Congress to attach onerous terms to state funding provisions.

                But to your point about the street-level politics:   Obama looks at PPACA as a deeply flawed piece of legislation.  Cynically, as a Liberal, I hope the Individual Mandate part is struck down.   Others have observed this case wouldn’t have arisen if the GOP was in charge:  they’ve always been against a national health insurance scheme, going back to the days of Truman, when Ronald Reagan was recruited to be the face of opposition, wearing the flag of the AMA at the time, but egged on by many Republicans of the time.   But the Conservatives have made such a botch of their opposition to the Individual Mandate, trying to bring in cases like Lottery Case, 188 U.S. 321 (1903) , which says

                This is true of insurance policies, and both are contingent in their nature. Yet this Court has held that the issuing of fire, marine, and life insurance policies in one state, and sending them to another, to be there delivered to the insured on payment of premium, is not interstate commerce. Paul v. Virginia, 8 Wall. 168; Hooper v. California, 155 U. S. 648; New York Life Insurance Company v. Cravens, 178 U. S. 389.

                In Paul v. Virginia, Mr. Justice Field, in delivering the unanimous opinion of the Court, said:

                “Issuing a policy of insurance is not a transaction of commerce. The policies are simple contracts of indemnity against loss by fire, entered into between the corporations and the assured for a consideration paid by the latter. These contracts are not articles of commerce

                Which sorta takes me back to Penn Mutual.   Only in Bizarro World would the GOP have ever passed any sort of health care act.Report

    • Avatar b-psycho in reply to greginak
      Ignored
      says:

      If the “it” being claimed as something both sides do is defined as “what my side does is good, what your side does is evil”, then yes, both sides do do it.  How often does any significant degree of internal criticism (“I know this is what most of my party is saying, but I think it’s wrong”) arise?

      Most interesting thing about it is the arguments each side is leaning on to make their case undermines them on issues their base cares about.  Expansive interpretation of the commerce clause (which the “liberals” are calling for) is greasing the wheels for the feds ignoring state marijuana laws, while a narrow interpretation if consistent would royally screw conservatives on future attempts at legislating morality.  Why, if I didn’t know better, I’d say they have the time preference of those tiny flies that hover around the streetlights every night.Report

  5. Avatar BlaiseP
    Ignored
    says:

    The jillion-farad capacitors are fully charged and the revolving Mars lights illuminate the cavernous facility.   The steam whistle blows a huge Steely Dan-esque C mu minor chord and the jumpsuit-clad workers run for the exits.   Wreathed in chilled nitrogen fumes, the Broderton discharges, reducing a Kraft marshmallow to plasma.  Two relativistic jets spew forth from both ends, now truly Jet Puffed as the label on the bag implied.Report

  6. Avatar Dan Miller
    Ignored
    says:

    I’m not sure why you would believe that Democrats would object to a Bush-led expansion of health care.  After all, they didn’t with the Medicare Rx drug coverage expansion, which was substantially less of a liberal priority than your proposed Dubya-care, what with the universal coverage and all.Report

    • Avatar Tom Van Dyke in reply to Dan Miller
      Ignored
      says:

      Dan, I thought of the Prescription Drug Entitlement also, and was just reading up.  The Dems did vote against it in the House except for 9 crossovers. Dunno if that was just for show—I believe the nays were that it didn’t go far enough, but the 9 were permitted to get it passed as a hal a loaf is better than none thing.

      It passed the Senate unanimously, more accurately without even taking a vote.  Daschle was one of the overs.

       

      Interesting article from the right, that Part D has come in at 42% LESS than projected, and is part of Paul Ryan’s argument for decentralized market solutions rather than comprehensive governmental ones.

      http://spectator.org/archives/2012/02/20/rick-santorums-part-d-vote

       Report

      • Avatar Will Truman in reply to Tom Van Dyke
        Ignored
        says:

        It did? When I looked around I dug up a 54-44 vote. That Spectator article appears to say the same thing.Report

        • Avatar Tom Van Dyke in reply to Will Truman
          Ignored
          says:

          The final vote on the final reconciled House version, Mr. Trum, I got somewheres else.  The point being that I believe the “nays” were more symbolic than vociferous opposition, IOW, not designed to kill the bill as much as register objection that it wasn’t statist enough/was too friendly to business.

          I could be wrong, but I believe the dynamics were different than the Obamacare battle.  I don’t recall a furor anything similar.  Reps and Dems had both promised a prescription drug benefit in the 2000 election, so the question wasn’t “if,” but only “when” and “how.”  The AmSpec article claims the GOP wrested the issue from the Dems and put it to bed, which sounds about right.

          However, it’s not as though “compassionate conservatism” got any credit for it, or stuck as a political philosophy.  I don’t recall any GOP critic [or defender] hereabouts giving the 2001-2007 Congress anything but brickbats for its spending, not props for its compassion.Report

          • Avatar Will Truman in reply to Tom Van Dyke
            Ignored
            says:

            The point being that I believe the “nays” were more symbolic than vociferous opposition, IOW, not designed to kill the bill as much as register objection that it wasn’t statist enough/was too friendly to business.

            That’s definitely not the case. At least not in the House. The bill failed the initial vote. Then, on the second vote, Delay scrounged up three Republicans. The Democrats didn’t budge.Report

            • Avatar Tom Van Dyke in reply to Will Truman
              Ignored
              says:

              9 Dems crossed.  In the Senate, I believe Daschle was a strong supporter.  Again, the prescription drug benefit was not an if, but when and how.

              Anyway, do you recall the passage being as contentious as Obamacare’s?  Did the Dems fight it even after passage?  That was the larger point, that although the numbers appear similar, the contentiousness was not.Report

            • Avatar Stillwater in reply to Will Truman
              Ignored
              says:

              Trumwill, it looks to me like you’re missing the facty forest for the truthy trees. Tom has a valid point here. You’re just not feelin it.Report

              • Avatar Tom Van Dyke in reply to Stillwater
                Ignored
                says:

                missing the facty forest for the truthy trees

                That’s damn ace, sir.Report

              • Avatar Will Truman in reply to Stillwater
                Ignored
                says:

                Stillwater, The House Democrats not only voted against it, but did so when their vote meant that it would die in the House. Then, after having voted to kill it, voted in the same numbers again. It only passed because Republicans changed their votes. I do not see how I am ignoring facts here for truthyism.

                As Tom says, a prescription drug benefit was coming. Which is all the more reason that they could kill Bush’s plan: they had reason to believe that they could get a deal on their terms. The 2004 election was less than a year away and either a Democrat would win or they would be able to force Bush back to the table.

                I genuinely see no reason to believe that if Delay hadn’t been able to find the votes that the House Democrats would have just jumped on board. At least on the House side, it doesn’t look like showmanship to me.Report

              • Avatar Stillwater in reply to Will Truman
                Ignored
                says:

                Oops. I got the setup wrong.

                Tom Van Dyke! You’re missing the facty forest for the truthy trees!

                 Report

              • Avatar Tom Van Dyke in reply to Stillwater
                Ignored
                says:

                Well, it was a good line regardless.  You’re not really involved in the conversation, so whoever you’re directing it at, it makes no difference.  I thought I would say something nice, but you can go back under the bridge now and you’ll understand why you’ll be fed with no more good will.Report

              • Avatar Kazzy in reply to Tom Van Dyke
                Ignored
                says:

                Seriously? An ace when it is on your side and a troll when corrected to the other? Beautiful.Report

              • Avatar Tod Kelly in reply to Tom Van Dyke
                Ignored
                says:

                Kaz, he just said it was good either way.Report

              • Avatar Kazzy in reply to Tom Van Dyke
                Ignored
                says:

                Is he? Telling someone to go back under a bridge with no good will? What’d I miss?Report

              • Avatar Stillwater in reply to Tom Van Dyke
                Ignored
                says:

                I’m sorry about that Tom. You’re right, I only picked up the conversation a bit before I commented, and it seemed to me you were arguing truthiness and Trumwill was arguing factiness. And that line struck me. I was apparently so giddy about it I got the markers wrong, and that’s bad on me. But you’re also right that I didn’t really have any input to the conversation other than using that line.

                Hold a little good will for me and I’ll do the same for you brother.Report

              • Avatar Will Truman in reply to Tom Van Dyke
                Ignored
                says:

                I was initially rather resentful of your uninvited intrusion into the conversation. Then, I discovered you were agreeing with me, and I came to appreciate your sagely contribution.Report

      • Avatar Jesse Ewiak in reply to Tom Van Dyke
        Ignored
        says:

        A response.

        Basically, there are more generics in the market than expected due to a slowing of innovation, less people have signed up for Medicare Part D than expected, expenditure are still growing fast, and Part D isn’t capped.Report

    • Avatar Renee in reply to Dan Miller
      Ignored
      says:

      In the setup I was postulating that the reform would eliminate Medicare/Medicaid.  Hardly something I see the Dems getting behind.  The fact that Repubs had recently expanded Medicare certainly is a plot flaw.  I knew it, but pressed forward regardless . ..Report

      • Avatar Mike in reply to Renee
        Ignored
        says:

        I think having the plan eliminate (or integrate) Medicare and Medicaid was the fly in the ointment.  The Dems would have demagogued  the bill to death, just as they did to Social Security reform in “our” universe.  They wouldn’t have wanted a health bill to pass that they didn’t have their imprimatur on.  That’s why they opposed the prescription drug bill.Report

    • Avatar Will Truman in reply to Dan Miller
      Ignored
      says:

      They didn’t filibuster it, and didn’t uniformly vote against it, but the Democrats did vote overwhelmingly against the MMAReport

  7. Nob Akimoto Nob Akimoto
    Ignored
    says:

    It’s actually telling that after the 2006 mid-term shellacking, Karl Rove went to the trouble of recruiting a consultant to formulate policy for health care reform in the interests of crafting an agenda that they could work with the Dems on. There was interest, but the knowledge that a new election was coming in 2 years and Bush’s lame duck status meant it didn’t really go anywhere…but if we’re talking circa 2004 there’s probably more give there.Report

  8. Avatar Murali
    Ignored
    says:

    Renee, This was just awesome. Please, can I have some more?

    Report

  9. Avatar Renee
    Ignored
    says:

    So this was my first post anywhere and I understand that the author can’t control the comments (thanks to everyone who has commented), but I meant the questions at the end of the OP completely seriously.  I left it as a cliffhanger not because I think I am a clever author, but because I really don’t know how it would end and I would love to hear what the league thinks.  So . . .

    1.  How do you think the Court would have voted on the mandate if the Counter-factuator had not blown up?

    2.  If it is different than the CW on how our real court will vote on the mandate, does that make you uncomfortable about the court?  Discuss.

    In the spirit of not asking for something you aren’t willing to do yourself, here are my answers.

    1.  I think the liberals would vote to strike the law down.  I’m really not a legal theorist – but I think that in order to save government functions that they view as necessary and worthwhile, they would find the lack of limits a persuasive argument.  I think the conservatives would mostly vote to uphold the mandate, but I think Thomas might vote it down with his own opinion.   Swing justices, well, I don’t suppose I really know enough to make a call either way.

    2.  It is different and I found that considerably surprising and disturbing.  I don’t think it means that justices are corrupt or selfish or prisoners of politics.  I do think it means that they are human beings and, therefore, insanely complex.  I think that while they try to apply law, they (like all of us!) our prisoners of their own experience and that perhaps we should consider that when discussing the “politicization of the court.”

    I really do look forward to your thoughts . . .Report

    • Avatar Murali in reply to Renee
      Ignored
      says:

      I’m going to agree with you for pretty much the same reasons you gave. The worry about the whole thing is how much of your conclusions (which seem very reasonable) seem built into the scenario that you described? I think, that in order for the scenario to be realistic, the policy will have to be sold on different terms to the public. Also, different arguments would be used by different factions. So, in the real world R’s use one set of criticisms. In twin earth, D’s would phrase the criticisms differently in a way that would appeal to the constitutional philosophy of the more liberal judges.

      The thing is, in a way, this is not worrying. The considerations that judges bring to bear on a particular case are responsive to those considerations brought up by the plaintive and defendant. That this is politically motivatd just means that the laintives and the defendants are. But, are the consierations thus brought up really so different that we can see a reversal of positions? I don’t know. There does seem to be a significant extent to which judges weigh and evaluate particular considerations relative to their own personal morality and this part may be worrying. The end resul then seems to be one where continuity is difficult to obtain in american courts.Report

      • Avatar Renee in reply to Murali
        Ignored
        says:

        Murali – Your point about the different factions presenting the case differently to appeal to the judges is good and something that I didn’t take far enough.  I ham-handedly used the gun mandate as something the left might use to appeal to its base, but I am simply not imaginative enough a legal eagle to come up with what each side might actually present to the judges.  But you are right to point out that the briefs and oral arguments are very significant and seek to find ways for judges to apply the law in a way that matches their preferred outcome.Report

  10. Avatar James K
    Ignored
    says:

    This was an excellent post Renee.

    FWIW, I don’t think the conservative justices would lockstep vote in favour of it, for one thing I have a hard time believing Thomas would, based on his Gonzales v Raich decision.  Now Scalia, that’s another story.Report

  11. Avatar Ryan Bonneville
    Ignored
    says:

    Great job, Renee!

    1. I mostly agree with your read on the inevitable outcome. I think you get Rehnquist/Roberts, Scalia, O’Connor, and Kennedy voting in favor, the liberals against, and Thomas as a swing vote (which is pretty odd when you think about it). I’d say the commenters in this thread are a little too sure that Thomas would vote against it; he’s actually very, very statist when it comes to conservative policy goals. I could also see the more statist of the liberals (by which I really just mean Breyer, I think) shrugging and voting to uphold despite policy objections. That would be a weird split: R/R, Scalia, O’Connor, Kennedy, Breyer vs. Ginsburg, Stevens, Souter, Thomas.

    2. This doesn’t make me terribly uncomfortable. The justices are political actors. What’s uncomfortable to me is that people don’t already understand that.Report

Leave a Reply

Your email address will not be published. Required fields are marked *