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If I were a member of the Supreme Court I'd be a bit embarrassed at how easy it is to predict Supreme Court rulings knowing only a few elementary political facts.
I expect a 5-4 ruling and I expect it to break down along political lines. It shows me this, the Supreme Court is only there to support certain ideology, making this less about the Constitution and more about what it is to hold power for more than 30 years. This, whether the members of the court care or not this is the problem. They've become, based on Bush v. Gore merely an arbiter that always errs on the side of promoting the political ideology of one side or another. Imagine if Brown v. Board of Education, Bolling v. Sharpe, Cooper v. Aaron, Gomillion v. Lightfoot, Griffin v. County School Board, Green v. School Board of New Kent County, Lucy v. Adams, Loving v. Virginia had been left for this court to decide, shit, we be where South Africa was in the 1980's in terms of civil rights. We'd be the largest segregated nation on earth!
Well, let's get past the rant, let's talk about Anthony Kennedy.
I've heard all the popular analysis about Kennedy, that he is the swing vote, etc. and so on. Well, yesterday in a little noted exchange he seemed to be telling the government lawyer the route he should take to defend the constitutionality of the law.
In an exchange with Paul Clement (he is representing those 25 states), this went down:
Kennedy asked Clement this: Is the government's argument this--and maybe I won't state it accurately. It is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks. That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?
And just a short while later:
MR. CLEMENT: And with respect to the health insurance market that's designed to have payment in the health care market, everybody is not in the market. And that's the premise of the statute, and that's the problem Congress is trying to solve.
And if it tried to solve it through incentives, we wouldn't be here; but, it's trying to solve it in a way that nobody has ever tried to solve an economic problem before, which is saying, you know, it would be so much more efficient if you were just in this market--
JUSTICE KENNEDY: But they are in the market in the sense that they are creating a risk that the market must account for.
MR. CLEMENT: Well, Justice Kennedy, I don't think that's right, certainly in any way that distinguishes this from any other context.
What does this mean? It almost seems like Justice Kennedy is signaling the defense the government should be making, (and why aren't they anyway??? WTF, seriously).
And a little later this:
MR. CARVIN: It is clear that the failure to buy health insurance doesn't affect anyone. Defaulting on your payments to your health care provider does. Congress chose, for whatever reason, not to regulate the harmful activity of defaulting on your health care provider. They used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured.
JUSTICE KENNEDY: I agree--I agree that that's what's happening here.
MR. CARVIN: Okay.
JUSTICE KENNEDY: And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets--stipulate two markets--the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.
That's my concern in the case.
I fully expect this to be a 5-4 decision based on the politics of the Court. I have no faith that whatsoever in the non-partisanship of the court. Sorry -- Bush v. Gore cured me of believing in the non-partisanship of the court. And I know that 75% of the country is with me on that, this is something that the Court itself should be ashamed of and it is telling that they are not.
Oh well, we tried. Get ready for your health insurance costs to skyrocket.
Crossposted @ TheAngriestLiberal