Tuesday, June 26, 2012

The angry dissenters

Think about the stinging dissents that Justices Alito and Scalia read from the bench yesterday, Alito angry that the states are not allowed to sentence juveniles to mandatory life without parole, and Scalia outraged that Arizona is not allowed to act like the sovereign nation it never was in enforcing its own immigration policy. I don't have much to add to the legal analysis of those dissents. Both seem awfully full of holes to me. But why were these dissenters so angry?

I could be wrong, but to me it sends a hopeful signal about the health care decision expected on Thursday. If the Supreme Court were about to declare the Affordable Care Act unconstitutional, then Scalia and Alito, even while dissenting in yesterday's cases, would have been smirking to themselves in pleasure at the ruling they are about to hand down on health insurance. They know that the health care case is the big deal, and if they were going to win on that one, they should have been able to take the Arizona immigration case and the juvenile punishment cases in stride. But Alito and Scalia seemed far from sanguine about these cases.

Why were they so angry? It would seem they only have a right to be as angry as they acted yesterday if they are also going to find themselves in the minority on health care. Only if this very conservative court--as conservative a Supreme Court as has ever existed in my lifetime, and probably, if Obama is re-elected, as conservative a Supreme Court as we will see for the remainder of my lifetime--only if that conservative court is about to hand a 6-3 victory to the liberals would their frustration be understandable. Because that would mean these three most radical justices (Scalia, Alito, and the silent Thomas) have reached the limits of their conservative power, and it did not gain them all they wanted, and it is all downhill for them after this. One can only hope.

(NY Post photo)


  1. I didn't hear any anger. Maybe you heard your own anger.

  2. I am not angry. If the Court finds health insurance reform unconstitutional tomorrow, then I might be angry. Right now I am hopeful.

    And I am far from the only one who detected anger in Scalia's and Alito's dissenting opinions. Were you reading the same opinions everyone else was reading?






  3. There are good reasons the authors of those links are not on the SCOTUS. And measuring the Courts anger is about as helpful as measuring yours.

    The health care reform bill includes some wonderful ideas that will end up as law but the bill is bad for us as a whole and for medicine. It is poorly written and over reaches. It drives up costs and drives out doctors.

    Just a few of the issues that will need direct attention post ruling:

    1) address portability
    2) selling insurance across state lines
    3) breaking up insurance company monopolies
    4) cost containment
    5) tort reform
    6) maintaining pre-existing conditions coverage
    7) maintaining young adults inclusion on family plans

  4. I was only interested in measuring these two justices' anger as a possible sign of where the Court might come down tomorrow. A lot of people are trying to read the tea leaves, and I think my theory is as good as anybody's.

    Anyway, the issue before the Supreme Court is not whether this law is a good idea or a bad idea. They are not supposed to consider that at all. The only issue is whether Congress is forbidden by the Constitution from enacting such a law. And that is why they should affirm it. Because if they overturn it, I might have to go back to law school to unlearn everything I learned the first time. (And I went to a very conservative law school where Scalia was one of my teachers!)

  5. << I might have to go back to law school to unlearn everything I learned the first time. (And I went to a very conservative law school where Scalia was one of my teachers!) >>

    Great comment!

    On a side note, did you skip his classes :-)