Jim Fallows had a nice post linking to me yesterday, so I'll start the week by returning the favor. He wrote yesterday asking his reader to consider the following sequence of events:
First, a presidential election is decided by five people, who don't even try to explain their choice in normal legal terms.
Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
Meanwhile their party's representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation -- and appointments, especially to the courts.
And, when a major piece of legislation gets through, the party's majority on the Supreme Court prepares to negate it -- even though the details of the plan were originally Republican proposals and even though the party's presidential nominee endorsed these concepts only a few years ago.
This is all factually true, as much as some readers will want to poke holes in it. And it doesn't even tell the whole story. The whole story includes the narrative of how a minority took control of a political party, pushed out everyone who disagreed with it so that there was effectively no dissent within that party; how a relatively small handful of very rich people organized themselves and started pouring billions of dollars into political action; how that is of course their right, but how purposely funding "institutes" that tell repeated lies about science and so on should not be; and much more.
This group represents no more than 30 to 35 percent of the population on most issues. On some, more. On the individual mandate, more, though that only after telling people the usual smorsgasbord of lies, while most conservative legal scholars were quietly acknowledging that it was clearly constitutional.
This coup has been, and is, procedurally legal; no one took over the radio station by armed force or came down from the hills in fatigues. But interestingly enough, where the law didn't suit them, they took care to put in place people who would bend the law to their liking.
On that point, I've begun reading back through Roberts and Alito's testimony when they were nominated. It's obscene. More on it later.
This is the context in which the decision I anticipate is best understood. This isn't even really about the mandate, necessarily. It's about the commerce clause and the more general principle of the reach of government. In the second wave of the news cycle examining the opinions, assuming the mandate is overturned, I would not doubt that we'll start seeing articles speculating that Scalia's or whomever's opinion could well be applied to environmental regulation, federal standards about business practices, all manner of government involvement in domestic commerce. It could be that 30 or 40 years from now, when someone draws up a list of the consequences of the coming decision, the mandate will rank about 10th.
On the other hand I shot a 93 yesterday! (Tomasky blog quiz: Who'll be the first right-winger to point out in high dudgeon that I'm some kind of limousine liberal or hypocrite or something because I play golf?! Of course Vegas has made President Dinkins the odds-on favorite, but I'm gonna play a hunch and say that Barry guy.) Had a strong back nine, a 44, on a tough, links-style course (public, I might add).
I play golf in part because it requires very serious concentration and it thus enables me to spend four-and-a-half hours every so often in which I don't think about what a reactionary sump this country is in danger of becoming. Then, of course, as soon as we finished our round, my buddies and I sat down to have a beer and complain about what a reactionary sump this country is in danger of becoming.
