Working the Refs
Most of those responding to Williams point out that his is a weird argument — arguing that overturning a generally unpopular government mandate would damage the Supreme Court doesn’t really make sense. But my take is that Williams and others who share his opinion have a weird double standard: 5-4 decisions like Lawrence v. Texas that promote progressive policy preferences are not a problem, but 5-4 decisions that defy those preferences like Citizens United and, potentially, the forthcoming ACA decision are.
What really seems to be going on here is that fans of the ACA have given up on the substantive argument. Their attempts to convince Americans that the individual mandate lies within the near-infinite power of Congress under the Commerce Clause are both legally and politically unsustainable. So they have reverted to a more primitive technique of trying to say that disagreeing with them is simply disallowed, no debate needed.
They would be better off looking to the future — if the ACA is struck down, conservatives will have won a victory, yes, but we will still be left with a dysfunctional health care system desperately in need of reform. And it would be easily possible to resurrect many of the policy options in the ACA without tripping over the Constitution again. For example, the problem with the individual mandate largely arose because of Congress’ contortions to avoid the accusation that they were raising taxes. Simply being honest about what their preferred policies were and what they would cost would clean up the debate and avoid the constitutional conundrum.
Then again, maybe that’s the problem. Single-payer health care has many virtues, but also many flaws. And as many critics noted two years ago, progressive advocates of health care reform tended to avoid persuading anyone in favor of simply bullying everyone.
Perhaps if the ACA goes down, it will be a good thing in that it forces a reconsideration of both the substantive policies for health care and the rhetoric means for promoting them.