Dear Walter and Judge Posner:
What a delight to welcome you to this year’s Breakfast Table!
Walter—welcome back and thank you so very much for your many years of service to the cause of Slate. Judge Posner, it’s a thrill and honor to have you with us this time. I hope you have fun. I must also send a shout-out to Paul Clement who will be much missed this year. I am trying to think of a time in all the years we’ve hosted this discussion when the court has been as breathlessly discussed and debated on the front pages and at family weddings as we are seeing right now. We’ve witnessed extraordinary decisions come down over the years, but this is the first time the court itself is being dissected, and the issue is less the constitutionality of the Affordable Care Act than the role of the Supreme Court itself.
Walter your proposal from Friday—that the mandate can be struck down with the penalty surviving has gathered some traction. I remember the Joey Fishkin version from early April and David Savage flicks at a different compromise at the L.A. Times this morning—going back to the Brett Kavanaugh argument that this was a tax and thus constitutional. It’s interesting to watch the commentary come in waves. Most court watchers have gone from reasoning with the court, to pleading with it, to reconciling themselves to one outcome or another, and now we seem to be settling in around the idea that some middle ground is still achievable—a symbolic way for the court’s conservatives to limit the reach of the mandate without gutting all the popular provisions of the law.
Polls continue to show that this is precisely the outcome the public seems to want; not that this matters. But I suppose it’s a way for the court to do away with the unpopular piece of the law without being tagged for taking away all the good bits.
As I have suggested I’ve been most fascinated these past weeks by the deeply politicized discussions of the court, from Ezra Klein’s ruminations on judges as politicians and his sense that the court has finally become a “polarized institution” and the heated responses it and other pieces have engendered. We’re all talking about partisan politics and the courts again in a way that I recall from 2000 and that would seem familiar to FDR. This is a conversation that generally stresses out court-watchers, who prefer to believe that courts are courts (see, e.g., Akhil Amar on the possibility that his whole life has been a fraud). The chasm between the legal academy and the court on the health care cases will spawn a thousand law review articles some day. I don’t know what the justices plan to do this week but I imagine they will be hugely relieved when it is all over. I am never one to put huge stock in polling about the Supreme Court but my sense is that for courts in general, all headlines are bad ones.
While we’re waiting for whatever today brings, I wonder if either of you has thoughts on either last Thursday’s “fleeting expletives” decision or in the SEIU case against which the New York Times has inveighed.
It does feel a bit as though we’ve been on the edge of our seats over health reform for so long now, we’re all just about falling off our bar stools. That said, I look forward to spending the week with you both out here in cyberspace.