SCOTUS issued opinions on several cases since the last post- some of which were expected, and others which appeared, by virtue of the final decisional makeup. First off, the third (and likely last) Obamacare ruling came down in favor of keeping the law, without the mandate and penalty, intact. Opponents, most of which were represnted by their state attorneys general, tried to defeat the law in its entirety by arguing that the law without the mandate and penalty was a house of cards that should be overturned. The Court found that the states could not prove any direct injury- likely because the states are not directly responsible for any funding except as it relates to the expanded medicaid provisons funded by states. Absent injury, there is no case or controversy which the Court can decide.
This case shows, more clearly than ever, that the Court is bowing out of this pollitical fight. The real fight was in the first case, and having Roberts convert the commerce regulation into a tax, ended that issue. However controversial, the law stands, and now the only issue is political. How costly, absent the funding means designed to help pay for it, will it become. In the end, the single payer option looks almost as attractive if the cost of care is unlimited and the program can be hidden in the trillion dollar plus annual deficits the National government has been creating.
On several other cases, immigatrion, and the GLBT adoption case, the Court surprisingly came down with 9-0 decisions. That does not mean that on each issue, on each point, each member agreed with the reasoning of the majority. In fact, in the GLBT case, the reasons for arriving at the decision were quite different. This means that the ruling can be only inferentially relied on, that in another case with similar facts, the ruling could be different.
It also signals, and this is what I think might be the most significant, that this is a very fluid court, with members willing and able to align themselves with ideas and not ideology, with clear points of law and not broad legal theory.
Justice Kavanaugh is surprisingly carving out a place for his own views, which are Scalia-like, but less politic. He has signaled in strong terms, his lack of reluctance to overrule precedent long thought established beyond touch. If wrong originally, if incorrectly decided, it ought to be overruled. If looking for a legacy, Kavanaugh knows it will not come via compromise with those who he can never appease. Watch this closely, as the Mississippi abortion case comes forward next term. That, I opine, that may be his legacy.
Kurt
