On your marks, get set, go! Oh no, sorry: false start. That sound must have come from somebody in the crowd. Come back on Thursday at the same time for the real starting pistol.
So much for “health-care Monday,” which had Washington and the media world in a rare tizzy. Shortly after ten o’clock this morning, John Roberts and his colleagues handed down a bunch of rulings, some of them significant, such as one that struck down part of the Arizona immigration law, but none of them pertaining to the Affordable Health Care for America Act, a.k.a. Obamacare. The Justices, like producers of a Hollywood soap opera, were keeping their best plot twist for the end.
Pity all the politicians and professional agitators, such as Michele Bachmann, who (see the front page of this morning’s Times) had rushed back to a sweltering Washington in order to avail the world of their opinions on the court’s ruling—as if we didn’t already know them. (Last fall, Bachmann said the health-care reform would “endanger the national security.”) Pity, too, for the hordes of reporters and pundits who were hunched over their Twitter screens primed for action.
Isn’t digital technology supposed to increase productivity? How, then, do you explain hundreds of highly educated people—many of them highly paid, too—all devoting their workday to trying to outdo each other by a second or two, with a newsbreak or “witticism.” When the Arizona ruling came down, there was mass confusion about whether the court had ruled for or against the Obama Administration. (It was the former.) One of the few worthwhile comments I saw came from my colleague Ryan Lizza: “SCOTUS decisions are not really designed to be covered as breaking news, are they?”
The actual rulings, as opposed to the posturing and online blather, turned out to be pretty interesting. Take the Arizona case, in which the Court largely accepted the Administration’s argument that states can’t override federal immigration laws. (My colleague Alex Koppelman has written about the ruling in more detail.) How encouraging was it for the White House to see the three ultra-conservatives—Justices Scalia, Alito, and Thomas—reduced to a minority, and an angry one at that? Scalia’s stinging dissent, a defense of states’ “sovereign rights” that could have been written a hundred years ago, was almost as long as the majority opinion, which Justice Kennedy wrote.
The Arizona ruling showed, once again, that the Court’s right wing isn’t always a united phalanx: that’s the good news for the Administration and its supporters. Chief Justice Roberts, together with the four liberal Justices, joined Kennedy’s opinion. On most issues, though, Roberts, Kennedy, Scalia, Alito, and Thomas still see eye to eye. In asserting, by a five-to-four ruling, that its 2010 Citizens United ruling applies to campaign finance in Montana and other states, as well as to national campaigns, the conservative Justices demonstrated, once again, that they don’t shy away from public controversy—or of being accused of legislating by decree.
The Administration’s entire strategy in arguing the health-care case has been to create a cleavage between Justice Kennedy and the three conservative ultras, in the belief that Chief Justice Roberts would then side with the majority to avoid a five-to-four ruling. Back in March, after the oral arguments took place, I expressed the opinion that Donald Verrilli, the solicitor general, who was widely criticized for his performance, actually did a pretty good job of providing Kennedy with a conservative rationale for siding with the Administration. Rather than asserting a blanket federal right to introduce purchasing mandates, Verrilli argued that health care, for a variety of reasons, was a special case.
After this morning’s rulings, Verrilli still has some reason to hope that his narrow strategy might succeed. In the Arizona case, the court largely deferred to precedent. If it were to do the same thing in the health-care case, the case law on the interstate commerce cause would militate against striking down Obamacare, or even just outlawing the individual mandate. Still, though, most of the pundits are convinced that the Court will rule against the Administration.
We shall see. Don’t forget: same time, same place on Thursday for the final episode. There’s a rumor going around Twitter that Bobby Ewing may come back from the dead…
Photograph by Jim Watson/AFP/Getty Images.
