I subscribe to the Atlantic, which I consider to be a well-balanced magazine, so I was psyched to see an article by one Rebecca Buckwalter-Poza titled "How Obamacare will be settled: a primer on the Commerce Clause." Goody: I'd like to get some additional legal background beyond Wickard v. Fillburn.
It starts out well enough with a clinical discussion of the individual mandate, severability, and how various Circuit Courts have ruled on Obamacare thus far. But then this, after noting that the Supreme Court will be hearing an appeal from an Eleventh Circuit ruling:
Senator Rick Santorum has used these statistics to claim that the Ninth Circuit is a "rogue" court and "a pox on the western part of our country." Santorum and former House Speaker Newt Gingrich have called for the abolishment of the Ninth Circuit. But Santorum and Gingrich's complaints about the Ninth Circuit have been discredited. Last term the overall reversal rate was 72 percent. While the Ninth Circuit was reversed 79 percent of the time, the Fifth Circuit -- at 80 percent -- and Sixth Circuit -- at 83 percent -- had higher reversal rates.Huh? In what wafer-thin connection did Santorum and Gingrich get dragged into this discussion? More critically: after citing the reversal rates for three other Courts, why can't we know what the reversal rate is for the Eleventh Circuit? In the course of a single paragraph, suddenly it's all murky. After citing all the other Courts, we dare not conjecture on the 11th.
Reverse-affirm ratios cannot reliably forecast individual case outcomes. Statistics are particularly uninformative in this instance. There are too many variables -- and too few data points since Justice Elena Kagan's confirmation -- to predict how the Court will rule on the Eleventh Circuit appeal.
I did a search on Google and the very first link goes to an article noting that the Eleventh had one of the best affirmation rates among the Circuit Courts with 40% of all decisions upheld and a "B+" rating. Was this sloppy reporting or just an underhanded way to wave away the truth that the 11th's ruling might be upheld? If I had doubts about the author's objectivity, they were soon wiped away as she rattles through Commerce Clause cases. Here we come to the second case by the Rehnquist court that pushed back on an expansive interpretation of the Clause:
The second major blow came five years later in U.S. v. Morrison, 529 U.S. 598, another five-four split."Major blow?" I personally would have said "major victory" but you get the point. It was "another 5-4 split" meaning it was Scalia and his buddies spiking the punch.
Then we get to the section about potential conflicts of interest involving Justices Thomas, Scalia, and Kagan. You could argue that Thomas has some legitimate issues with his wife's finances. Scalia went to a dinner with some conservatives - that's it. But Elena Kagan was Solicitor General and was clearly involved with legal discussions regarding Obamacare. Here's how whatshername reports this:
Critics of Justice Kagan are demanding her recusal on the theory that she may have assisted in preparing the defense of Obamacare while serving as Solicitor General.Incisive! Well, that's the "theory" of Kagan's "critics" and you know how they can be. Maybe she did, maybe she didn't - moving on everybody!
Finally, we come full circle to the persuasive reasoning of the Sixth Circuit. Wait, what?
The answer to the inactivity argument for supporters of Obamacare is that individuals who do not buy insurance are still active in the health care market. The Sixth Circuit was persuaded by this logic, citing the $100 billion in health care costs incurred by the uninsured each year.Didn't you just tell us, Ms. B-P, that the Sixth Circuit is the most reversed Circuit Court in the land? Why would we rely on the ruling of a court that gets it wrong 83% of the time?!?
I could go on but let's just say that Rebecca spends four paragraphs on Solicitor General Verrilli's arguments for the case and doesn't even mention his counterpart Paul Clement. This was advocacy and agitprop masquerading as journalism and it wouldn't be so annoying if it weren't so common.