We now know that the 4 conservative justices (including Kennedy) came down on the side of not just finding the mandate unconstitutional. They were in favor of striking the entire ACA. Almost no one predicted that as the final outcome because it would have been such an extreme position for the court to take. It would have forever tainted the "Roberts Court" as political and polarized.
So what were the Chief Justice's options? If the 4 conservative justices were as intransigent as their political counterparts, the only remaining choice he had was to work out a compromise with the 4 liberals.
Thinking about it that way takes me back to much of the conversation that was going on a couple of years ago about why President Obama nominated Elena Kagan. At the time, most people were talking about her potential to be an envoy to Justice Kennedy. But read this passage that was written back then and think about how it might apply to her working with Chief Justice Roberts on this decision.
Kagan distinguished herself as Dean of Harvard Law School by making peace between long-feuding factions on the right and the left. Few think she will be able to change the positions of the most devoted conservatives, Scalia, Roberts, Justice Samuel Alito and Justice Clarence Thomas. But apparently Obama thinks she may sway Kennedy...I doubt we're likely to learn about the machinations between Justices that went on behind closed doors unless one of them decides to write a particularly juicy memoir. But this seems like an extremely plausible scenario about how all this came down. If so, it would be fascinating that one of the first real breaks in the polarization President Obama has been fighting now for almost 4 years came - not in Congress - but in the Supreme Court.
But what's most important, her backers say, is her ability to work the process; her skill as a consensus builder, they argue, could eventually make a difference. Kennedy finds himself alone among the nine Justices on some issues, says Goldstein, and the question is which block of four can find the legal common ground to form a majority with him. "It's not infrequent that Kennedy is in a four-one-four posture and it's how you adapt to him that is what matters," Goldstein says. "It's not that she has intellectual capacities that others don't, but coalition building is a different thing, and she has an innate ability to find win-win solutions."
The short answer to the question in the post's title would be "yes."
ReplyDeleteYour supposition about Kagan may or may not be true on an individual level but it is certainly true that the President believes that coalition building is the way to make things happen in this system. He is without a doubt correct. Unless you want to bring in jackbooted thugs, you will have to work with people on particular issues, find areas of agreement, and form policy at those interstices.
The policy will be justifies by what it leads to in the long run, and how near that long run actually is. What's the goal for me? I want to see a society where each of us can fully manifest who we are without fear. The ACA clearly moves us in that direction.
What the President said in his comment today is illustrative of why I can get behind him. He framed this not in terms of fiscal policy (the clear need to begin to rein in health care cost in the budget and the GDP) but in terms of each of our rights to live without fear that our bodies' needs will destroy us financially. We have a right as people to health care.
So, our job is to take that ball and run with it. The fact is that many if not most working class people in the US--if you have to work this means you--feel like they don't have a right to anything. What scraps they get are by the good graces of their superiors. Until they think otherwise, it will be politically difficult to pass left policy. Now, you can say to someone, you have a RIGHT to keep your insurance if you get sick, etc. Don't let anyone take that right away. When people internalize that, we'll have single payer sooner rather than later. But this is up to us in our daily conversations with our temporary adversaries.
I will note to any left purists out there that even Stalin--even Stalin!--advocated a popular front against fascism.
I know my suggestion about Kagan is purely supposition. But I just checked and she is one - along with Breyer - who voted with the 5 conservatives on the medicaid limitations. So I'll now expand my suppositions and suggest that she and Breyer negotiated a deal.
DeleteMy point wasn't so much the fact that you supposed, but rather that it was a supposition that, correct or not, fits into the broader strategy the President takes. It was a very illustrative point.
DeleteBy the way, did I tell you I like your blog? This is the only one I regularly participate in, and it's largely because the group that regularly comments is very non-toxic. People seem like they want to learn from each other, and this stems I think from your example.
I appreciate and agree with your larger point.
DeleteI think I must be on some kind of quest (hopeless I'm sure) to figure out how this happened. just finished reading several blogs (both wingnut and liberal) where people are suggesting that Scalia's dissent has language in it that indicates it was probably initially written as the majority position. People are speculating that Roberts changed his mind at the last minute. The next question of course, is what it was that changed his mind.
There's part of me that says this is all meaningless. And yet I'm fascinated by it.
And thanks for being such a great supporter of this little place. I agree - even though the comments are few - they are always profound!