In the course of an interesting musing about the constitutionality of the mandate, Ezra Klein makes what seems to me to be a slightly odd prediction:Now the individual mandate is traveling through the courts. A judge appointed by Bill Clinton has ruled it constitutional. A judge appointed by Ronald Reagan has signaled that he might do the opposite. Last week, Bill Dailey asked whether I truly believed the Supreme Court part of this cynical dance. And the answer is yes, I do.
That doesn't mean I think the Supreme Court will rule the mandate unconstitutional. Coming on the heels of Citizens United, that would spark a tremendous confrontation between the Democratic Party, the Democratic president, and the Supreme Court of the United States. There are good reasons for them to prefer avoiding that outcome. They may try to split the difference, offering a limited ruling requiring slight tweaks to the mandate.
But the evidence on past Supreme Court decisions, the heavily political process through which Supreme Court justices are now chosen, and our intuition -- the Supreme Court is full of human beings, and human beings have biases -- should make us very skeptical of claims that the Supreme Court is somehow removed from politics, or that the same partisan forces that turned the individual mandate from a conservative idea into a conservative bete noire are not behind the arguments now playing out in the courts.
To put it slightly differently, I have no concerns about the abstract constitutionality of the individual mandate. Insofar as I have any concerns, they're about the partisan leanings of the Supreme Court's current occupants.
How the hell did McArdle get from "partisan leanings" to "political worries"? Klein says the Court is controlled by partisan conservatives, basing his assessment on the heavy vetting for political purity in the appointment process, The Supreme Court and the Attitudinal Model Revisited, and the tendency of people to believe what they want to believe. McArdle bases her opinoin on her false belief that health care reform is unpopular in the US.
I assume that the Supreme Court will be extremely reluctant to strike down the individual mandate, for a whole host of reasons.
Unlike Klein, McArdle does not provide those reasons.
But I do not think that political worries will be among them, because the mandate is extremely unpopular. Nor do I believe that the Supreme Court justices will be checked by the fear of "a tremendous confrontation between the Democratic Party, the Democratic president, and the Supreme Court of the United States."
Actually, I don't either. Conservatives can't envision the possibility that they are wrong, since obedience depends on the assumption of infallibility and they must obey someone.
Ezra seems to be envisioning something along the lines of FDR's court-packing showdown, which culminated in "the switch in time".
Klein stated partisan leaning. Why can't McArdle understand that?
This seems unlikely in the extreme, for several reasons:
[snip--straw man duly attacked and defeated, rah rah]
The Supreme Court is worried about the legitimacy of its own institution,
What the hell? Where did that come from?
but I see no evidence that a ruling invalidating the mandate would jeopardize that legitimacy. Yes, it would piss off a lot of Democrats, but I doubt the majority of the court really cares all that much.
Which contradicts everything else she wrote and proves Klein's post.
I am starting to wonder if I have been unduly critical of McArdle. Perhaps she has suffered from some sort of brain tumor or stroke or brain cloud. Perhaps one day she will collapse in front of the Watergate Building and everyone will say, "I bet you're sorry now, picking on that poor, brain-dead woman!"
Perhaps, my friends. Perhaps.