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Wednesday, June 27, 2012
Healthcare Case Predictions
Predictions about how the result of the healthcare case are so Wednesday afternoon. Surely there are more interesting things to predict in this case than the mere outcome. Let me suggest a few:
1) Length. Will the total number of pages exceed the average campaign finance decision or Neal Stephenson novel? Or will the Court decide to speak directly to the people, Brown-style -- ie., a short paean to healthcare, some opaque statements, and a conclusion?
2) Number of opinions. I'm going to guess seven opinions. But I'm willing to go as high as twelve, assuming additional opinions by both retired Justices plus a late-breaking, agonized additional decision by the late Justice Whittaker.
3) Strained language. If lawyers were poets, they would be --well, Archibald MacLeish, I suppose. If Justice Kennedy writes for the Court, what Kennedyesque phrases will appear? Perhaps: "At the center of healthcare is the mystery of life. And, occasionally, death. Also, bronchial infections." On the other hand, if the betting is right and Chief Justice Roberts took the majority opinion, I predict: "The way to achieve healthcare reform is to stop talking about healthcare reform."
4) "Respectfully's." Will the dissenting opinions employ the warm and collegial "I respectfully dissent," or will they unleash the fury of a thousand suns by writing "I dissent?"
I leave these matters open for respectful guesses. (Or, if you're outraged, just guesses.) I can venture some predictions more confidently:
5) If the mandate is struck down, Randy Barnett will immediately file suit to strike down other major legislation and overturn any remaining New Deal precedents. He will sternly point out that he is staking out a position in that case alone and that it is presumptuous to assume he has a broader agenda of any sort.
6) Again if it is struck down, the Yale Law School faculty will take up a collection to buy Akhil Amar a Care Bear and a nice "Sorry your life has been a fraud" card from Hallmark.
7) If you have an email address, you will receive a healthcare-decision-related fundraising solicitation from one or more political parties tomorrow, possibly including PRI and PAN. If you are like me, it will begin, "Dear Paula."
8) Tomorrow in Slate, Judge Posner will write a post suggesting that the Court's opinion is insufficiently pragmatic and lacks a healthy dollop of casual, armchair social science.
Other predictions on non-outcome-related matters are welcome. When the opinions come down, I will edit this post to reflect my completely correct prediction of the actual decision. In the meantime, I would like to thank the many brilliant friends who helped me write this post. And my mom.
Oh, you know what, I might as well venture my prediction. My view is that Roberts will join the liberal wing and that the mandate will be upheld -- although probably on tax grounds rather than the Commerce Clause. You heard it here first!
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What, no snarking about the number of meta posts on this topic? Too soon?
Posted by: dave hoffman | Jun 27, 2012 10:06:15 PM
This is pretty funny. (I do hope, also, that not too many people die and/or are driven into lifelong poverty because of the ruling tomorrow. (If the whole law is struck down the net total for both categories over the next fifteen years would probably be in the high six figures.))
But no, it's actually funny. I like "fury of a thousand suns." (I do remember wistfully the last time that "I dissent" thing happened, and then we had some wars and a bunch of US Attorneys got fired for refusing to suppress voter turnout.)
This is the funniest bit: "The way to achieve healthcare reform is to stop talking about healthcare reform."
Sorry to be a little tense. I do appreciate the effort to lighten things up.
One slight correction: some lawyers, if they were poets, would be Wallace Stevens.
Posted by: Jim von der Heydt | Jun 27, 2012 10:21:17 PM
Jack Balkin predicts that a 5-justice majority not only will strike down ACA, but also find that every other law signed by President Obama is not severable and also must be struck down, since it is all part of an elaborate scheme to foist socialism on the American public.
Posted by: Howard Wasserman | Jun 27, 2012 10:23:43 PM
Re: “an elaborate scheme to foist European-style socialism on an unsuspecting public.”
The Obama administration might have anticipated the Court’s antipathy to “European-style socialism” and instead attempted to propagate “American-style socialism,” that is, socialism and communism (notice the lower-case ‘c’) of red-blooded American vintage, in other words, but not exclusively, utopian socialism (of the sort which originally inspired Marx and Engels, although they later sought to distance themselves from its influence in a misguided effort to make socialism ‘scientific’ and in the more sympathetic endeavor to render socialism relevant to the ‘politics’ of their era). Such socialism does not need to be “foisted” on an “unsuspecting public,” for presumably the bulk of this public has acquired a high school education, in which case it is intimately familiar with American history and thus the following works (as exemplary and illustrative samples), or at least the material discussed in same:
· Case, John and Rosemary C.R. Taylor, eds. Co-ops, Communes, and Collectives: Experiments in Social Change in the 1960s and 1970s. New York: Pantheon Books, 1979.
· Flacks, Richard. Making History: The Radical Tradition in American Life. New York: Columbia University Press, 1988.
· Gendron, Richard and G. William Domhoff. The Leftmost City: Power and Progressive Politics in Santa Cruz. Boulder, CO: Westview Press, 2009.
· Hine, Robert V. California’s Utopian Colonies. Berkeley, CA: University of California Press, 1983 ed.
· Melville, Keith. Communes in the Counter Culture: Origins, Theories, Styles of Life. New York: Morrow Quill, 1972.
· Nichols, John. The “S” Word: A Short History of an American Tradition…Socialism. London: Verso, 2011. [This book contains much of the relevant literature in its notes from several chapters.]
· Nordhoff, Charles. The Communistic Societies of the United States. New York: Schocken Books, 1965 (originally published in 1875).
· Pitzer, Donald E., ed. America’s Communal Utopias. Chapel Hill, NC: University of North Carolina Press, 1997.
On Marx and Engels ambivalent relation to “utopian socialism,” see Vincent Geoghegan’s Utopianism and Marxism (London: Methuen & Co., 1987). On the continuing relevance of “utopian socialism” to socialist aspirations and experiments, see Michael Harrington’s Socialism: Past and Future (New York: Arcade Publishing, 1989). For those of you who may have forgotten, this is the same Michael Harrington who penned the classic, The Other America (1962).
Posted by: Patrick S. O'Donnell | Jun 28, 2012 1:32:37 AM
If the Court upholds the ACA, Scalia will accuse the Court of being "a product of a law-profession culture that has largely signed on to the so-called healthcare reform agenda."
Posted by: Michael Teter | Jun 28, 2012 6:47:27 AM
Total number of times "broccoli" appears in all opinions, combined: 3.
Posted by: anon | Jun 28, 2012 7:40:01 AM
I'd be interested in seeing what Kagan and Sotomayor says here. Alito had his say in Comstock. K/S need to put their stamp on federalism cases.
Posted by: Joe | Jun 28, 2012 7:41:26 AM
If Akhil Amar had a care bear, I bet he would name it Akhil Amar.
Posted by: anon | Jun 28, 2012 9:44:28 AM
"My view is that Roberts will join the liberal wing and that the mandate will be upheld -- although probably on tax grounds rather than the Commerce Clause."
Wow, that was a really good guess! Almost suspiciously good!
Posted by: Doctor Chim Richalds | Jun 28, 2012 10:23:49 PM
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