November 11, 2020 9:31 am at 9:31 am #1918737
For the past 5 days (and many of us feel it has been 1360 days) we have been subjected to roughly 200 tweetlach, many in ALL CAPS, ranting about vague conspiracy theories of voter fraud, interspersed with short MAGA and TREASON exhortations. Yet somehow this morning for 90 minutes, 9 disembodied voices reminded us of what for 245 years has been the norm in our political discourse. Nine supreme court justices split 6-3 on the political spectrum engaged in a quaintly respectful virtual “oral argument” on Obamacare with two sets of States on opposite sides of the issue. While I admit to being a bit of a policy wonk and was fixated on arcane discussions of “standing” and “severability” it was total escapism to hear Justice Thomas (who asked opposing lawyers more questions this AM than he has in the past two decades combined) calmly and respectfully advising Justice Breyer how to “turn on your machine” when the latter seemed to unable to deactivate his mute button when it was his turn to question. For 90 minutes, words had real meaning and were parsed in a search for Congressional intent. Lawyers for two sides on the most bitterly litigated statute in American history consistently referred to one another as “my friend” and apologized profusely when the virtual technology had them interrupting the justices in their responses. When it was over, you came away with a real sense of a majority of the justices struggling to find some common ground knowing how consequential their decision could be in a time of a pandemic while also recognizing their role was not to “fix” public policy. It was a reminder that our public discourse has not always been screaming random allegations or threats in ALL CAPS and that even those on the “other side” have valid concerns worthy of attention.
P.S. There are worrisome and dangerous threats to our civil discourse coming from the far left of the political spectrum which sometimes are drowned out by the Tweet Storms so those on my side of the aisle cannot and should not assume the world will be magically transformed on January 20th back to a world where Tip O’Neil and Ronald Reagan would get together for drinks after a day of rhetorical bashing.November 11, 2020 12:12 pm at 12:12 pm #1918949Reb EliezerParticipantNovember 11, 2020 3:07 pm at 3:07 pm #1919008
Reb E: Thanks. Very good summary of yesterday’s oral argument. I tend to agree with the analysis but suspect that the Chief will try to form a broader consensus (6-3 or 7-2) on the “standing” argument versus what appears to be a close (5-4) vote to affirm severability that would allow the law (minus mandatory coverage) to stand. The Court (and especially CJ Roberts) prefer to “punt” on substantive issues on which there is serious division. Denial of standing would be such a punt.November 11, 2020 4:54 pm at 4:54 pm #1919081Reb EliezerParticipant
GH, Did you see my comment there?November 11, 2020 7:49 pm at 7:49 pm #1919122
Reb E: Thanks. No, I actually missed the comment at the end of the article. I’m not sure the Court will be anxious to wade into the “mandate” debate which it addressed back in 2015 under the commerce clause (and Roberts saved as a “tax” versus “mandate to purchase a product”) and subsequently by Congress in 2017 when it zeroed out the penalty but left the mandate in place (ergo a mandate with no compliance consequences). I don’t think Biden and the Senate Dems will be able to push through a new set of dollar penalties for those not carrying insurance. However, the past 3 years have shown the ACA still is effective even absent the mandate, albeit with lower efficacy and higher costs.
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