• My pre-decision two cents

    I know people want to know what I think will happen at the Supreme Court today. I refuse to speculate. Sorry. There is simply no way to know, and ample evidence that everyone who guesses has no idea what they’re talking about.

    But I have two thoughts I can share. I’m not sure they don’t contradict each other a little.

    1) I’m finding myself somewhat disturbed that a couple of unelected people, who have been appointed for life, who are largely held unaccountable for any of their actions, have so much power in the United States of America. I am sure people felt this way around other momentous decisions in the history of the United States, but I wasn’t there, and I don’t remember. Watching people freak out about the “power” of members of the IPAB, I’m struck by how comfortable we seem with the Supreme Court. After all the blood, sweat, and tears over health care reform in the past few years, does it bother no one else that it’s coming down to one or two people, whom no one voted for, who never have to explain themselves in public? Maybe it’s just me.

    2) Amazingly, I am becoming more convinced that the drama is all contained in a shockingly small bubble. I’m pretty convinced most of my friends have no idea the Supreme Court is ruling today. I don’t even think a lot of people I work with know. Moreover, I’m not sure that they feel strongly one way or the other whether the law stands or falls, outside what it might mean for the Presidential election. There’s a lot of blame to go around for that, not a little of which I place on the media for making this more about the political spectacle rather than what it means for everyday Americans. Or maybe, once again, this is always the way it’s been. I don’t know.

    After the decision comes down, I will have more to say about what it means. Some of the posts will be elsewhere, but there will be links here.


    • Would you be as uncomfortable with the power of the Supreme Court if a law you opposed was being decided, or should we do away entirely with the idea of checks and balances? I find they’re most important when people we disagree with have the majority.

    • 1. Compared to what? The Constitution in general and the Supreme Court in general are mechanisms to limit and constrain the exercise of the government’s power to infringe upon a suite of individual rights and freedoms. Has the court always ruled in a manner that’s consistent with my preferences in this regard? No – and I can’t fathom how anyone could have ever believed that the ICC clause could be interpreted in a manner consistent with Wickard vs Filburn in the first place. Would we be better off with no institutional mechanism to constrain the majority’s exercise of power through Congress and the Presidency? No. Can I think of a realistic alternative that would have done a better job, or name an analagous institution in another country that has consistently proven superior in this regard? No.

      I’ll have to read today’s ruling to better understand the basis of their decision before I comment on it more extensively – but even though I suspect that I’ll be much more inclined with the dissenters than the majority – disagreeing with a particular ruling doesn’t inspire me to doubt the legitimacy of the institution.

    • There are lots of people who wield substantial power without being elected. Nobody voted for Kathleen Sebelius or Donald Rumsfeld or Alberto Gonzalez or Eric Holder, or zillions of others. That’s just a feature of modern government, and the Supreme Court is hardly unique.

      Of course the Supreme Court has the potential to render dramatic, life-changing verdicts. But in practice they rarely do so, and most people can safely ignore this institution with no effect on their lives. Today’s decision is a perfect example of this — the court ended up issuing two highly technical rulings, one on the limits of a single clause in the Constitution, the other on the limits of Federal coercion of states. The vast majority of people don’t perceive these as having anything to do with their lives, and so not unreasonably they don’t care about them.

      The IPAB is a different story. This is an institution that has much less potential power than SCOTUS, but also is encouraged to use that limited power actively and aggressively. Many people WILL perceive this as a direct threat — just look at the uproar over the recent Preventative Services Task Force pronouncements on breast and prostate screening. And this despite the fact that the PSTF has no means to enforce their rulings, unlike the IPAB. I think that the first IPAB ruling that cuts payments for anything will generate huge pushback, not just for the decision itself but more generally for the institution as a whole.