Saturday, June 23, 2012

Enjoy The Silence: The Calm Before the Obamacare Decision

Folks are marveling at how news of the Supreme Court's Obamacare decision has not leaked (with the exception, I guess, of Justice Ginsberg's saying there were "sharp disagreements").

As we all wait around in the heat for the ACA opinion, it has occured to me that it is truly stunning that the result hasn't leaked already.  The decision must have actually been made months ago.  Is it possible that no clerk mentioned what s/he is working on to a spouse?  That no spouse with the information mentioned it to a parent or friend, even accidentally?  That no parent or friend let it leak to a sniffing journalist or day trader in the community?  With an aggressive press corps dying for a scoop, well-connected within the community of people that work in and around the Court, doesn't it seem surprising that a secret could be so well kept?  

First of all, I think if the decision is to uphold Obamacare in toto (a little legal Latin for you), then word would have leaked out from deliriously happy liberal clerks. Similarly, I don't expect the conservative clerks to say anything if the decision were to strike down Obamacare because, hey, we righties know a thing or two about maintaining a discrete silence about things, especially when Justice Thomas says STFU.

Still, all of this anticipatory silence reminds me of a story I read in elementary school. There was a kid, you see, who could predict the future. He became a TV star with a show where he accurately predicted events in the lives of various audience members. One day, the kid was seen to be very quiet and nervous. He didn't want to do the show. The network honchos (and maybe his parents, I forget) pressured to go on with the show, and he did. He predicted a coming era of peace and prosperity; an end to all wars, hunger, disease, etc. People poured into the streets, partying and cheering in anticipation of the coming Golden Age. Looking at the crowds below, the kid's producer says, wow, that was some prediction. The kid responds, no, actually, tomorrow the sun is going to explode. 


If the Court is going to overturn any part of Obamacare, I don't think any of the liberal members of the Court, or their clerks, would say a word. Better to let their political allies get a few remaining days to argue about the constitutionality of the law, and a precious few more days of regulatory expansion.  

On the other hand, if the Court is going to uphold Obamacare, then the conservatives at the Court would have even more reason for silence. That's because a Court made up of a majority appointed by Reagan and the two Bushes, including four genuine conservative stalwarts, that can't strike down the individual mandate is a Court that is "conservative" in name only. You often hear people speak disparagingly of Justice Kennedy of being more concerned about the New York Times editorial board than anything else. I doubt that's true because, were he to be the fifth vote to uphold, his name would be mud on the Republican side, and a generational watchword for bad judicial appointments. Would you want to be known as "worse than Souter?" And, if you knew that was to be your fate, wouldn't you want a few days of silence before all hell breaks loose?

The whole point of the originalist counter-revolution is precisely to rein in big government overreach such as Obamacare. If  we can't do that, we can't do anything, at least nothing momentous. If there, indeed, has been such a failure, the conservative justices are better off maintaining a profoundly disappointed silence until they can be silent no more. 

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