If They're Smart ...

I wonder if the Supreme Court might just do the right thing here, and deny cert.

Let's see:
Plenty of the current players on the Court were there the last time they made the (disastrous) decision, in retrospect (or not, if you're forward looking, with good eyesight). Taking on the Bush/Gore case, and "settling" that one left nobody happy.

Had they not intervened, and let the Florida Supreme Court decide, the ballots would have been counted, no? And didn't an inquiry by the Miami Herald show, after the fact, that Bush still would have won.

Surely the Court can now see how they tarnished their reputation, seemingly getting involved in something political that they would have done best to keep out of. Do you honestly think they want to court that kind of reaction, an appearance of political involvement, again?

When all they'd have to do is refuse this one, let the lower courts stew in the muddle for a few more months, while the current 2012 political election campaigning continues to play out? Why take it now? Why not just avoid the whole appearance of involvement in politics, wait and see who wins, and what is done (possible partial repeal, if there's a Republican clean sweep in all the branches? NOTE: the two political branches that is: the executive, and the Senate and House in the legislative.

Why dirty their hands? First of all, wouldn't Kagan have to recuse? Wouldn't it look funny if she didn't -- coming into her current position not so recently from a political appointment?

[Some say Thomas too. Not too closely following this, but he spoke out on the issue (or his wife lobbied this way or that, perhaps?) so some are saying he should step away from being an immediate decider on this one too?]

If you don't take this one up now, and the elections don't clarify anything, won't the Court surely get another turn at bat? Where they could -- if it's clear they are needed -- take action on this one, with time to spare before the Mandate is imposed, and all the non-promising and pragmatic aspects of ACA kick in? (Too bad, really, that it occurred in stages: first the "freebie" giveaways, and then, years later, the reckoning with the "how are we gonna pay for this??" pricetag?


Is John Roberts, and the rest of the team, as pragmatic as promised? Not so much ideological as some might think -- they can save that for the privacy of their individual voting booth, of course -- that they want to step in the muck now, probably understanding that either way they decide, one quarter to one-half of the country, depending how you read the current tea leaves, is going to be disappointed or outraged? (Probably more the latter the way our current politico-entertainment media models are sold, on air, tv and print?)

When do they have to decide whether they're up to deciding to take on this one -- now! with all due haste -- anyway? Never got that much into the intricacies of the Court's workings to know that off the top of my head... And the law proffy types are too busy opining sometimes to give us the basic facts... (I could look it up, yes I know...)

For the purpose of my argument here though, I wonder if the Gore/Bush mess taught them anything? Now I gotta tell ya, I'm one who is offended by the predictors -- again, often your insider, educated law proffy types -- who predict this is all a matter of vote-counting political gamesmanship. Clearly, based on precedent, it's either Constitutional or not. And clearly, whether we like it or not, we've got to accept the results, if the system as a whole is to work...

(That's why, despite disappointment, people indeed did learn to accept the Court's ruling, even before the recount numbers were in, because at some basic level of authority, you accept what the Man Refereeing these things says, or else you just quit playing the game altogether. Hattip: a solid sporting education.)

That doesn't mean though, that an ump has to be forced to see this one as the deciding play at the plate. You can't bump those calls aside, in that they're not politically convenient now. And yes, generally when the lower courts are mixed, the Court is expected to step in and clarify, to not risk sowing further confusion.

But ... think that timeline again. Is it really so bad, on an issue like this, to have it perhaps decided politically, on what was, essentially, a middle of the night, the night before Christmas, political arm-twisting decision that brought us here to this point today? Dance with who brung ya.

If the legislature, with or without the approval of the voters, represented citizens' interests this way, wouldn't it be more palatable if the voters, who clearly must understand what's on the line in this election -- if they somehow were misled in the past, thinking other issues -- the economy, getting us out of wartime -- were essential votes way back when.... (Like the beginning of September, I ask: is it me, or does that now seem so very long ago... ?)



It's not political to punt. It might, indeed, be the most face saving think the judiciary could do now, to balance the way the 3 branches are supposed to work. If we "over-corrected" in the past, where the Judiciary perhaps stepped too far in, binding us precedentially to some issues that might have best been resolved in the two political branches, why not respectfully be a bit more minimalist now, and see how these types of issues resolve themselves over time.

The saying is: the wheels of Justice grind slowly. One major election -- when again, perhaps people didn't quite understand the stakes of what was coming, in the healthcare reform/business intervention field -- is honestly not that long ago, in judicial aging.

Fine wine, like good precedent, is best set when there's time to consider all the issues, when you take your time, and indeed -- what care is it of the blind lady of justice -- that the next election might determine future "deciders" depending on who wins in the one branch, and who retires/dies in another?

Will they be courageous enough to realize -- as the vote-counting, "it's all political", sophisticated-in-a-bad-way, Court watchers/predictors seem to think think they cannot -- those peripheral issues don't matter much? Are they really champing at the bit to have to decide this one .... now!


I hope not.

(You have your hope, I'll have mine. And together we'll be fine* ...)

-------------------------------
* Cuz it takes,
different strokes to rule the world,
yes it does...
It takes, different strokes to rule the world.


And honestly -- think back to the founders now -- do you think they'd prefer the enlightened, empathetic judging of such important societal issues fall to the representative branches of the people, so more ... diversity of opinion might be heard, or did they imagine we'd otherwise be appointing the elite judiciary to make these calls, based on their demographic and empathetic qualifications?

I vote the former.
Keep grinding forward ... slowly.
(Sometimes you/I anyway don't like it, but probably there's a reason -- so binding! -- things move seemingly so slowly in that branch... Nothing wrong, or cowardly at all, in understanding that role, and declining to take this one now.)