First, please examine this link: http://prospect.org/article/nine-circles-aca?utm_medium=referral&utm_source=pulsenews. Credit to the American Prospect, an excellent publication which I have long enjoyed, and the author of this succinct piece, Garrett Epps.
So, what do we glean from Day 3 of the oral arguments over the constitutionality of the ACA? First, Justice Scalia is a scary guy: first, he references a non-existent provision within the legislation (right-wing fiction has officially ascended into the Inner Chambers of the SCOTUS); next, he states his disdain for actually reading the ACA, and thus striking it down outright; finally, it is apparently that his mind is made up — contrary to his previous opinion in the Raiche case from 2005, politics will trump any principle, and he will likely vote to strike the entire ACA down. In 1991, I had argued — during a debate over the Clarence Thomas nomination — that Thomas was unqualified for a seat on the SCOTUS, but that Scalia — despite our sharp ideological differences — was highly qualified to occupy a seat on the Court.
I was wrong — neither one is qualified. Here is why: neither Scalia nor Thomas are capable of issuing decisions that are consistent with preexisting constitutional principles. Rather, their ultimate decisions — especially in cases with political pedigree — will drive them to ignore principle in favor of their rabid right-wing ideology. In my honest opinion, this complete shunning of hallowed principles makes neither one qualified for the SCOTUS.
Again, I will reiterate that we have arrived at the Second Coming of the Four Horsemen of Reaction (+ Kennedy). However, unlike in the 1920s and the first 2/3 of the 1930s, the damage is not easily reversed by an FDR or LBJ-like figure and an amenable Congress who replaces such reactionary figures with the standouts of 20th Century jurisprudence — Black, Douglas, Murphy, Rutledge, Thurgood Marshall, Fortas, Warren and Brennan (the latter two being Eisenhower appointees).
In other words, we are going to have to live with the decimation wreaked by these five Justices. The decimation is not only in the form of hallowed principles and the legitimacy of the SCOTUS, but — in the case of the ACA — also in the form of the human lives that will be destroyed or otherwise deeply affected by any invalidation of the ACA. The only good that may come from this is that any SCOTUS opinion striking down even the ACA’s mandate may serve to prevent any privatization of the Medicare and Social Security, as well as serve as the ‘tried and true’ basis for a new Congress in the unforeseeable future to finally adopt what should have already been on the table — Medicare for all, a single-payer health care system.
Other than that, the rhetoric of Justice Kennedy to the Administration’s attorney once again proved troubling, in that he simply ignores decades-old constitutional analysis wherein the Court has refrained from striking down an entire piece of legislation when an unconstitutional segment can be excised, and thus leave the remainder intact. Rather, in a manner somewhat akin to Scalia, Kennedy appeared to indicate that it would be too difficult for the SCOTUS to analyze the ACA deeply enough to actually keep it intact. In other words, neither Kennedy nor Scalia actually want to do the work.
My god, I hope that Kennedy is bluffing and will instead prove to be the critical vote upholding the entirety of the ACA, as well as 75-years of SCOTUS jurisprudence on the broad scope of Congress’ Commerce Clause powers.