November 15, 2014

New York Times SCOTUS reporter Linda Greenhouse explains (in much nicer language) why their decision to hear the case is bullshit:

It takes the votes of four of the nine justices to accept a case. Certainly Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. — the four who two years ago would have invalidated not only the individual mandate but the entire law — voted to hear King v. Burwell. (Michael A. Carvin, the plaintiffs’ lawyer, predicted as much last month, declaring in an uninhibited interview that the pending rehearing before an appeals court that has recently attained a majority of Democratic-appointed judges would be no deterrent to the justices who wanted to take the case. “I don’t know that four justices, who are needed here, are going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think,” he told a reporter from Talking Points Memo.)

An intriguing question is whether there was a fifth vote as well, from the chief justice. I have no idea, although I can’t imagine why he would think that taking this case was either in the court’s interest or in his own; just two months ago, at a public appearance at the University of Nebraska, he expressed concern that the “partisan rancor” of Washington could spill over onto the court.

Here’s another possible scenario, just a theory: that the four, still steaming over what the right wing regards as the chief justice’s betrayal two years ago, voted to hear King v. Burwell not only for its destructive potential, but precisely to put the heat on John Roberts. I hadn’t really focused on this idea until I read a piece that John Yoo posted on National Review Online the day after the court granted the case. Professor Yoo, formerly of the Justice Department’s Office of Legal Counsel and now at the University of California at Berkeley, wrote that the new case gave the chief justice “the chance to atone for his error in upholding Obamacare” and that “it will be the mission of his chief justiceship to repair the damage.” John Yoo — yes, the Bush administration lawyer whose “torture memos” attempted to justify that administration’s “enhanced interrogation” policies — is a smart man, a former law clerk to Justice Thomas who remains well connected at the court. His choice of the words "atone” and “mission,” with their religious resonance addressed to the devoutly Catholic chief justice, is no accident.

So this case is rich in almost every possible dimension. Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.

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