The Supreme Court Parties Like It’s 1936


I might as well confess that I’ve been in something like a state of shock for the past day. Tuesday was bad enough, but Wednesday’s arguments in the Supreme Court were nothing short of surreal, as the conservative justices, Kennedy and Scalia in particular, spent their time chatting as if they were in the Senate cloakroom, casually hashing out a deal to figure out how best to keep their campaign promises to the tea party. There was barely even a pretense of being a court, not a legislature.

Randy Barnett is getting lots of kudos these days as the guy who created the conservative case against Obamacare, primarily by inventing and proselytizing the activity vs. inactivity distinction. And I guess he deserves his star turn. But watching yesterday’s session (or, rather, reading the transcript) it’s pretty obvious that none of it mattered. The conservatives looked like five men who just didn’t like Obamacare and were bound and determined to find an excuse to overturn it. The activity vs. inactivity distinction was good enough, so that’s what they glommed onto, but anything else even reasonably plausible would have worked too.

It’s not over til it’s over, of course. Maybe the tone of the questioning has fooled us all, and at least a couple of the conservatives will pause before going fully rogue. But it looks grim right now, and even genial, generous E.J. Dionne is under no illusions about what it will mean if the court overturns Obamacare:

A court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.

I wasn’t alive the last time the Supreme Court acted like this, and I never thought I’d live to see the day it would go there again. And maybe it won’t. But they sure look like they’re all ready to party like it’s 1936 again.

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