I could not have done a better job than Digby and Joan McCarter did in this excellent episode of Jay Ackroyd's Virtually Speaking last Sunday.
First, the CBS News report, to bring you up to speed (my reparagraphing and emphasis):
Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.There's more in the report, but I'll let you go there for that.
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold. "He [Kennedy] was relentless," one source said of Kennedy's efforts. "He was very engaged in this."
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.
Keep in mind that, as we and others noted earlier, the dissenting opinion calls the concurring opinion "the dissent" quite a number of times. Given that Roberts switched his vote a month ago, that can't have been an accident.
A shot across the bow from the Republican justices, to embarrass (and publicize) Roberts' vote-switch? Speculation, of course, but not unlikely.
Now Digby and Joan McCarter on this and other topics. A brief rundown and comment follows the audio.
This discussion kicks off from the report quoted above. Listen:
A brief rundown of the main sections of this audio:
■ Start — Roberts' vote-switch and analysis.
■ 14:20 — The Medicaid expansion ruling.
■ 27:20 — A particularly clever Culture of Truth summary of the worst of the Sunday bobbleheads for July 1.
■ 35:20 — A pivot from the narrow failure of the Supreme Court to Chris Hayes' notion that all elite institutions have failed. Excellent discussion.
And two comments of my own:
Note how much of what Hayes says reflects badly on our modern love of "meritocracy." In my view, meritocracy fails — not just because it is so easily corrupted (Hayes' point, as well-articulated in the Digby–McCarter discussion) — but because at its heart meritocracy leads to profoundly undemocratic outcomes.
Yes, one "deserves" good according to one's "deserts," one's worthiness. In many arenas, the lazy should have less. But this so easily triggers our post-Renaissance love of punishing the less-hard-working "undeserving" (another reference to Erich Fromm's masterpiece, Escape from Freedom, by the way).
1. Some things in a society should be given because one is a citizen, because one is human and alive, regardless of "worthiness." If only practically, it's bad for the society as a whole to do otherwise. Consider health care, the present discussion point; think smokers and the emergency room. Sometimes punishing the so-called "unworthy" skins all of our hides.
2. The whole notion of tagging others as "unworthy" is itself profoundly arrogant. As Shakespeare observed:
God’s bodykins, man ... Use every man after his desert, and who should ’scape [public] whipping?If you look deep in each heart, which of us is not a petty thief? Public whipping was a common punishment for small-time crime. It's the "cast the first stone" problem. Who will shed an arrogant face long enough to admit our common clay?
Use them after your own honor and dignity. The less they deserve, the more merit is in your bounty.
Will you stand before your brothers and sisters and say, "I'm more worthy"? I hope to god on earth that's never me.
Thus Digby's good point in the second half of the discussion about liberalism and the great "liberal" dream that everyone should have equal opportunity. To Digby's credit, in my view, she says that (paraphrased) if we don't get good outcomes that way (i.e. that "everybody should have a decent life"), then we should try another way.
She mentions not being "Marxist but" ... which implies to me that European-style socialism, which assigns essential benefits regardless of "merit" — my point above — may be a better way to go.
I hope I haven't mis-characterized her position. I certainly haven't mis-characterized mine.
And I hope you enjoyed this discussion as much as I have. Comment, as always, is welcome.
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