Thursday, August 21, 2014

By Any Means Necessary

Linda Greenhouse, NYT
AUG. 20, 2014

The Affordable Care Act — Obamacare — has endured so many near-death experiences that digging into the details of still another effort to demolish it is admittedly not an inviting prospect. (My own reaction, I confess, to hearing some months back about the latest legal challenge — this one aimed at the supposed effect of a single word in the 900-page statute — was something along the lines of “wake me when it’s over.”)

But stay with me, because this latest round, catapulted onto the Supreme Court’s docket earlier this month by the same forces that brought us the failed Commerce Clause attack two years ago, opens a window on raw judicial politics so extreme that the saga so far would be funny if the potential consequences weren’t so serious.

To be clear, I’m not suggesting that there is anything wrong with turning to the courts to achieve what politics won’t deliver; we all know that litigation is politics by other means. (Think school desegregation. Think reproductive rights. Think, perhaps, same-sex marriage.) Nor is the creativity and determination of the Affordable Care Act’s opponents any great revelation — not after they came within a hairsbreadth of getting the law’s individual mandate thrown out on a constitutional theory that would have been laughed out of court not too many years ago.

(More here.)

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