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>> Thursday, March 29, 2012





I've been reading the news items and blog entries about the three days of oral arguments at the Supreme Court earlier this week over the Affordable Care Act with the mix of avoidance and focus you might give to a serious car wreck pulled off onto the side of the Interstate with traffic blocked miles in both directions and ambulances, fire trucks and highway patrol cars surrounding. It's impossible not to look but no point in looking, either, and if you saw something it probably wouldn't be anything you'd want to see.

The Affordable Care Act is doomed, five-four down party lines; no, it isn't, it's saved six-three by a Court trying to dodge political questions they regret taking up in the first place. No, it's just the individual mandate going down, except they can't sever it so it's all going down, no, they've discovered they didn't really have jurisdiction in the first place.

This is the thing: I don't think the questions these jurists ask at oral argument are necessarily signposts or signifiers of anything at all. It may have been the case that once upon a time this theatrical exercise in jurisprudence really was what it's disguised as, that once upon the time these characters in their robes went in with open, empty minds and asked questions they didn't know the answers to and debated like legal academics, like Talmudic scholars or Greek philosophers. Could be. That was before my time, so I guess I don't know. Seems to me these days what you have is Justices going in and asking questions they know the answers to, or, worse yet, that they don't actually care about the answers to; trying variously to appear genuinely open-minded or to just score points for their team. I've heard too many anecdotes from lawyers in state or federal appellate courts (and even the SCOTUS itself) who thought they did really well until they got a copy of the actual opinion; for that matter, it's happened to me, myself, at the non-appellate level, where I've argued in front of a judge and thought I was making a good showing until I abruptly found myself having lost the war despite victory in every single battle.

This happens.

I have no idea what these people are going to do in June. I find myself oddly apathetic in a desensitized way: it isn't like I can do anything about the outcome. Nor does it help that while I've come to terms with Obamacare (or: "How I learned to stop worrying and love the Affordable Insurance Exchange"), it isn't like this was the healthcare law I wanted; hell, I was critical of the damn thing while it was still on the anvil. Should I be upset if the individual mandate gets knocked out? I have no idea.

At some point, one of the needles finds its mark and the universe fills you with Novocaine.

I understand yesterday's arguments were particularly baffling. An attorney was up in front of the Court arguing that offering somebody money is a form of blackmail. "Sure," to paraphrase the gist, "states could refuse Federal funds, but goddamn it's a lot of money." This is concerning the expansion of Medicare, a program in which the Federal government has been giving money with strings attached since 1965, much like the Federal government--our Federal government--redistributes revenue with strings attached for the purposes of building highways and setting up computer databases of convicted criminals and whatnot, and has for decades and decades, those strings having been laid out and tied by the Senators and Representatives--our Senators and Representatives, representing the fifty states--we elected to make those kinds of decisions. I thought this was taken for granted, but apparently when our government said you could only have money for this and that if you used it for this and that, apparently that was a form of rape, that was trauma. State legislatures and state governors wept as they pulled their torn clothes tightly across their shame and grabbed up the fistfuls of soiled bills flung at them. This could be the stupidest notion to be brought back into the public discourse but for the fact Justice Scalia suggested maybe hospitals ought to be able to turn away people who can't pay after all and laws mandating care could be a bad idea. I guess it's consistent: his people also want doctors and pharmacists to be able to turn away people even if they can pay if what they want to pay for is a moral hazard, and they want employers and insurance companies to be able to decline to pay for healthcare they don't agree with. It's only callous and stupid and cruel if you make the mistake of caring, otherwise, you know, it's nothing much, it's nothing at all, really.

Sometimes it's like I don't recognize this place anymore.

The most depressing and debilitating part is where you start wishing ill on others. You start thinking some of these people ought to win just so you can say "I told you so" later. You hope they end up in emergency rooms or their children need reproductive health services; that their houses burn down because Congress decided to just cancel Medicare and with that explosive hole in the budget the state couldn't provide any services anymore, and there weren't any firetrucks or the firetrucks got stuck in potholes or a traffic jam created by a wreck that nobody was there to clear. Which is miserable when the whole reason you wanted healthcare reform in the first place was so nothing bad would happen to anybody ever again; well, at least you could prevent or mitigate a few bad things, right, for some people, and maybe that could be enough if you squinted at it and admitted you can only do the best you can do.

It would be nice if everything were alright at least the one time.



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