Should Obama hope he loses the Obamacare case in the Supreme Court?

Mickey Kaus says:

If the law is as unpopular as it seems to be, and if the individual mandate is “the most hated piece of the law,” then the Court, by removing the threat of the law, or at least the mandate, on constitutional grounds, would remove a big reason to oppose Obama, no? 

Not only that, but if the Supreme Court upholds the law, Obama's opponents will have a rich opportunity to rail against those terrible liberal justices who don't respect the Constitution and its basic structure of limited, enumerated powers: They've said it's "regulating commerce" to tell a private citizen he has to buy a product that he's chosen not to buy. Alarm! Alarm! Don't let Obama appoint any more Justices!

But if the Court strikes down the individual mandate, Obama will suddenly be able to say: Those terrible activist conservatives on the Court! They've illegitimately grabbed the power to veto a law conservatives don't want! They talk about judicial restraint, but look how they set themselves up as a super-legislature when they don't like what Congress has done.

By the way, I think the decision in the case is likely to track the will of the people, as perceived by the Court. So, it's important to advocates to create the appearance of public acceptance or public outrage over the law. This demonstration of public opinion should happen anyway as the presidential campaigns move forward. It will be fascinating to see what happens when the Supreme Court decision plops into that discourse.

If the Supreme Court upholds the individual mandate, Republicans will say: Now it's crucial to win the presidency and strong majorities in both houses of Congress so we can repeal this thing. If the individual mandate is unconstitutional, is there nothing Democrats can do? Well, the existing form of legislation is out, but there are other ways to extend health care that would not meet the same constitutional problem. But would Democrats want to argue that they need to win the presidency and strong majorities in both houses of Congress so they can push through some new health care reform? I doubt it. What a nightmare it was the first time, devastating the path of the Obama presidency and giving rise to the Tea Party!

Thinking through all these permutations, I'm guessing the Supreme Court will strike down the individual mandate. The existing doctrine doesn't require that outcome, but I'm reading the political forces at play and assessing the Court's vulnerability to those forces, and that's my interpretation.

IN THE COMMENTS: Garage Mahal asks: "Will Thomas recuse himself?" Here's a better question: Considering my analysis above, if Thomas recuses himself, should we see him as extracting himself from politics or — slyly and deviously — playing politics?

Garage? Garage? Garage? Garage?

Wisconsin Capitol Police very gently enforce the law against posting signs on the first floor.

Via Garage Mahal. Meade and I didn't witness this, but we were there the other day when activist Ben Masel couldn't get himself arrested.

"[T]here's no pong involved, it's not squidgy or anything like that."

I love this passage from Keith Richards's autobiography about keeping a pet  mouse in his pocket:

For companionship I kept pets. I had a cat and a mouse, Gladys. I would bring her to school and have a chat in the French lesson when it got boring. I'd feed her my dinner and lunch, and I'd come home with a pocketful of mouse shit. Mouse shit doesn't matter. It comes out in hardened pellets, there's no pong involved, it's not squidgy or anything like that. You just empty you pockets and out come these pellets. Gladys was true and trusted. She very rarely poked her head out of the pocket and exposed herself to instant death. But Doris had Gladys and my cat knocked off. She killed all my pets when I was a kid. She didn't like animals, she'd threatened to do it and she did it. I put a note on her bedroom door, with a drawing of a cat, that said "Murderer." I never forgave her for that. Doris's reaction was the usual: "Shut up. Don't be so soft. It was pissing all over the place."

Doris was (obviously) his mother.  And I'm copying this paragraph out not to do another post about "Battle Hymn of the Tiger Mother" — some English version of the maternal character — but a propos of the discussion of football we we're having in the previous post, which linked to a column that went on about the "pocket" —"Aaron and Ben are pocket-driven passers, with the extra element of being able to create once the pocket is no longer their friend" — and got garage "garaji" mahal to say "Little Ben will have plenty of opportunities to show how he can evade pass rushers. Because that pocket WILL be collapsing." That got me to say:

By the way, the "pocket" is another one of those feminine things in football... along with touching and tossing down a hankie. It's so adorable: a man in a pocket. It's like Keith Richards's pet mouse Gladys.

My football commentary is (pretty much) all about finding the hints of the feminine in the hyper-manly game. I hope you like it!

"The exclusion of same-sex couples from marriage 'exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage... That time has passed.'"

From the NYT editorial about Perry v. Schwarzenegger:

One of Judge Walker’s strongest points was that traditional notions of marriage can no longer be used to justify discrimination, just as gender roles in opposite-sex marriage have changed dramatically over the decades. All marriages are now unions of equals, he wrote, and there is no reason to restrict that equality to straight couples. The exclusion of same-sex couples from marriage “exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” he wrote. “That time has passed.”

That is, the conventional idea that marriage is between a man and a woman rests on gender stereotypes about what men and women are like. Since the sex discrimination cases already reject laws based on gender stereotypes, that conventional idea can't be the basis for rejecting same-sex marriage.

To justify the proposition’s inherent discrimination on the basis of sex and sexual orientation, he wrote, there would have to be a compelling state interest in banning same-sex marriage. But no rational basis for discrimination was presented at the two-and-a-half-week trial in January, he said. The real reason for Proposition 8, he wrote, is a moral view “that there is something wrong with same-sex couples,” and that is not a permissible reason for legislation.

“Moral disapproval alone,” he wrote, in words that could someday help change history, “is an improper basis on which to deny rights to gay men and women.”

That is the Supreme Court case law. As Justice Scalia complained in his Lawrence dissent:

The Court embraces ... Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice”.... This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review....

It was no stretch to end up where Judge Walker did. Now, the 9th Circuit Court and the U.S. Supreme Court may struggle to find their way back from the routine legal reasoning that took Judge Walker where many people are unhappy he went. But to do that will require stretching for a preferred result, given the precedent.

Why not cheer yourself up by thinking about the boost this will give to conservatives in the upcoming election? And leave gay people alone.



Okay?

IN THE COMMENTS: garage mahal starts us off with a comment, that based on previous gay marriage threads, predicts where this thread is destined to go:

Great. Now now I can marry a desk. Or a freezer. Oh wait... 

Something emailed to me exactly 1 year ago.

Ah! The memories!

And A. felt herself released, in another world, she felt she breathed differently.  But still she was afraid of how many of her roots, perhaps mortal ones, were tangled with her blog.  Yet still, she breathed freer, a new phase was going to begin in her life.

Reader_iam also kept a cherishing eye on A., feeling she must extend to her her female and professional protection.  She was always urging her ladyprofessorship to walk out to a cafe, to motor over to Beaver Dam, to be in the air.  For A. had got into the habit of  sitting still by the laptop, pretending to read, or to make strawberry smoothies feebly, and hardly going out at all.

It was a blowy day, soon after the boys had gone back to Texas and California respectively, that reader_iam tweeted: 'Now why don't you go for a walk through the arb around the lake, and look at the daffs behind that new gardener's cottage?  They're the prettiest sight you'd see in a day's march.  And you could put some in your room:  wild daffs are always so cheerful-looking, aren't they?'

A. took it in good part, even daffs for daffodils.  Wild daffodils! After all, one could not stew in one's own juice.  The spring came back... 'Seasons return, but not to me returns Day, or the sweet approach of Ev'n or Morn.'

And the new gardener, his thin, white body, like a lonely pistil of an invisible flower!  She had forgotten him in her unspeakable depression.  But now something roused... 'Pale beyond porch and portal'... the thing to do was to pass the porches and the portals.

She was stronger, and with the injections in her toe she could walk better,  and in the arb the wind would not be so tiring as it was across the lake, flatten against her.  She wanted to forget, to forget the world wide web and all the dreadful, carrion-bodied people.  'Ye must be born again!  I believe in the resurrection of the body! Except a grain of wheat fall into the earth and die, it shall by no means bring forth.  When the crocus cometh forth I too will emerge and see the sun!'  In the wind of March endless phrases swept through her consciousness.

Little gust of sunshine blew, strangely bright, and lit up the celandines at the arb's edge, under the Sycamores, they spangled out bright and yellow.  And the arb was still, stiller, but yet gusty with crossing sun.  The first windflowers were out, and all the arb seemed pale with the pallor of endless little anemones, sprinkling the shaken floor.  'The world has grown pale with thy breath.'  But it was the breath of Persephone, this time; she was out of hell on a cold morning.  Cold breaths of wind came, and overhead there was an anger of entangled wind caught among the twigs.  It, too was caught and trying to tear itself free, the wind, like Absalom.  How cold the anemones looked, bobbing their naked white shoulders over crinoline skirts of green.  But they stood it.  A few first bleached little primroses too, by the path, and yellow buds unfolding themselves.

The roaring and swaying was overhead, only cold currents came down below.  A. was strangely excited in the wood, and the color flew in her cheeks, and burned blue in her eyes.  She walked ploddingly, picking a few primroses and the first violets, that smelled sweet and cold, sweet and cold.  And she drifted on without knowing where she was.

Til she came to the clearing, at the end of the arb, and saw the green-stained stone cottage, looking almost rosy, like the flesh underneath a mushroom, its stone warmed in a burst of sun.  And there was a sprinkle of yellow jasmine by the door;  the closed door.  But no sound, no smoke from the chimney, no dog barking.

She went quietly round to the back, where the bank rose up.  She had an excuse: to see the daffodils.

And they were there, the short-stemmed flowers, rustling and fluttering and shivering, so bright and alive, but with nowhere to hide their faces, as they turned them away from the wind.

They shook their bright, sunny little rags in bouts of distress.  But perhaps they liked it really:  perhaps they really liked the tossing.

A. sat down with her back to a young pine tree that swayed against her with curious life, elastic, and powerful, rising up.  The erect, alive thing, with it top in the sun!  And she watched the daffodils turn golden, in a burst of sun that was warm on her hands and lap.  Even she caught the faint, tarry scent of the flowers.  And then, being so still and alone, she seemed to get into the current of her own proper destiny.  She had been fastened by a rope, and jagging and snarring like a boat at its moorings, now she was loose and adrift.

The sunshine gave way to chill, the daffodils were in shadow, dipping silently.  So they would dip through the day and the long cold night. So strong in their frailty!

She rose, a little stiff, took a few daffodils, and went down.  She hated breaking the flowers, but she wanted just one or two to go with her.  She would have to go back to Bascom and its walls, and now she hated it, especially its thick walls.  Walls!  Always walls!  Yet one needed them in this wind.

When she returned to her office, reader_iam tweeted her: 'Where did you go?'

'Over to the arb for a walk!  Here, here I shall post a photo I took of the little daffodils, aren't they adorable?  To think they should come out of the earth!'

'Just as much out of air and sunshine,' garage mahal commented, peevishly.

'But modeled in the earth,' she retorted, with a prompt contradiction that surprised her a little.

The next afternoon she went to the arb again....

So that was going on back then, and it was manifested on the blog — the slightest hint — like this.