Some Disconnected Thoughts Over the Years About Legal Realism and the Man Whom Judge Posner Calls "Disreputable": Chief Justice John Roberts

Sam Bagenstos: "My view on this is closer to Jesse's than to (my learned and valued colleague!) Nick's. The Fifth Circuit could reverse this ruling, but I don't have the confidence in them Nick does. I do think Roberts doesn't want to strike down the ACA 5-4 on this farkakte theory, though. But let's imagine one of the Dem appointees to the Court slips on a banana peel before the issue gets to SCOTUS. Then we really do have a direct threat to the ACA. So let's not breathe so easy...

Nicholas Bagley: The banana peel scenario is my nightmare too. But I think it's noteworthy that the elite Republican legal establishment has not yet thrown its muscle behind this lawsuit. If it does, my estimate of the odds would change.

Sam Bagenstos: Right now they can't count to 5 on the Supreme Court. (And some of the R justices may be essentially "Join-4" votes, so if it went up now the challenge would lose big.) If they could count to 5, I expect things would be different for some of these members of the establishment.

Nicholas Bagley: Maybe. But a bunch have already staked out positions, and the weakness of the legal arguments should make a difference. Still, I'm open to the possibility that I'm being naive.

Sam Bagenstos: Hopefully the banana peel scenario doesn't eventuate, so we never have to find out if you're being naive!...


Nicholas Bagley: I'm getting a lot of questions about when the judge's opinion takes effect. Bottom line: nothing changes for now, and nothing will change for some time to come. Here's why. The judge entered a declaratory judgment, not an injunction. That means the Trump administration and the states are free to keep implementing the ACA. One district court judge's declaration doesn't bind the government nationwide. What's more, California is going to appeal this decision. And it'll probably seek a stay pending appeal out of an abundance of caution—though I don't think it technically needs to do so, since there's no injunction in place. Some court will enter a stay—probably Judge O'Connor himself, but failing that the Fifth Circuit or the Supreme Court. What's certain is that it's above the judge's pay grade to invalidate the entire ACA without any possibility of review. So breathe deeply. The Fifth Circuit is unlikely to take this frivolous case seriously, and the case will die without the Supreme Court having to intervene. In the meantime, the ACA will remain in effect.

Jesse Lee: During Kavanaugh fight, I was asked whether threat to ACA was real. My answer was that Kavanaugh was bred to be a GOP political operative on the court. Alito, Thomas & Gorsuch—and now Kavanaugh—will repeal the ACA over the wrong font size. Q is how long Roberts will stand alone.


Scott Lemieux: I, too, think the Supreme Court is very likely to overrule O"Connor's opinion if it gets there, and even 5CA might. But remember that a lot of people don't have healthcare now because of a throw-everything-at-the-wall argument that attracted little attention in 2012.


Sam Bagenstos: There's a really good paper to be written about the sociology of liberal legal elites' reactions to the filing of, and developments in, the NFIB, King, and Texas ACA litigations.

Scott Lemieux: It doesn't seem easily available online, but I'm reminded of my favorite Bush v. Gore article, Tushnet's brief piece about how Bush v. Gore would slowly be normalized by legal scholars

Brian Beutler: Like, "the good men of the court would never countenance such an errant argument, for shame!" That kind of thing?

Sam Bagenstos: That is definitely one of the threads.

Brian Beutler: Yeah, it's frustrating, though this case makes me slightly more hopeful. In NFIB and King, the right collaborated in acting as though the arguments were not just perfectly reasonable, but the only ones available. This time that faction of the legal establishment is divided.

Matthew Martin: But let's not forget that a shockingly huge share of the republican establishment supports the arguments in this case. This is not just a rogue judge

Nicholas Bagley: are you subtweeting me?

Sam Bagenstos: I'm subtweeting all of us!

Mac LeBuhn: Similarly interesting to consider how extreme conservatism has rendered CLS true to otherwise skeptical liberals

Arlene Shumaker: Maybe they could write a paper on the fear and sleepless nights of the people that this decision will impact.

Touchline: I’m pretty sure it’s the same sociology that leads Neal Katyal to support Gorsuch for the Supreme Court.

Blank Slate: Liberals have this tendency to think the system, as represented by the weight of precedent and affirmed legal principles, will overcome rogue ideologues like this one. The truth is that an ideological court has hollowed out & inverted prior case law to achieve political results.

Protect the Truth: @mattyglesias identified the core principle: “Conservative judges are weak-minded ideologues who liberal lawyers pretend to respect for money.”

Chad Hill: Not necessarily for money. There is also an ideological commitment to "the law" as a trans-partisan enterprise to which many liberal legal elites idealistically subscribe.


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