THIS WEEK IN POLITICAL NEWS -- 11/25/16

THE TRIUMPHANT RETURN EDITION

Well friends, when last we met the Supreme Court had upheld the Affordable Care Act and struck down Arizona’s “papers, please” anti-immigrant law. That was a few years -- and a lifetime -- ago, it turns out. We now face a . . .  different reality, and my typing fingers have been a-itchin’ to get back to TWIPN, as the saying goes (the saying I just coined). So I’m back, though I can’t guarantee the same regularity as before, given that I have, you know, a real job these days. But with your forbearance, we’ll sort through the cascade of shit coming at us together, with our usual vim and vigor, and with perhaps a dash more gallows humor than before. So breathe deep, and let’s dive in!

THE CONFLICT OF INTEREST THING IS A BIG DEAL: Donald Trump plans to enrich himself and his family through the presidency. There can be no doubt about that. He has patently refused to shut down his businesses or transfer his holdings to a blind trust; the greatest assurance of a separation between governing and profit is his promise to focus on the country while his kids run the business -- so a pretty meaningless separation, given that he has involved his children intimately in the whole running of the country thing. (And why not? After all, as Giuliani says, he can’t be expected to “basically put them out of work,” can he?) The New Yorker’s Ryan Lizza has an excellent run-down of the various conflicts Trump presents (scroll down in the article). This isn’t just a formality; it’s not just another norm Trump has smashed on his way to the White House. Chait tells us to expect the worst: “Given Trump’s business ethics, which run from refusing to pay contractors and daring them to sue to establishing a fake university to swindle his fans to using his 'foundation' to illegally donate to a politician who subsequently did not investigate said university, it would be surprising if he did not eventually accept outright bribery.” But guys, it’s fine; Donald Trump totally understands the issue and is taking it seriously: “The law is totally on my side, meaning the President can’t have a conflict of interest.” Oh.

UPDATE ON APPOINTMENTS: Trump continues to achieve great success in assembling a Team of Racists (sort of like a Team of Rivals, but more sinister). We know Steve Bannon has shown himself to be anti-Semitic, racist, and misogynist, and that he ran a website that promoted a white nationalist author who published articles like “Bill Kristol: Renegade Jew” and “Birth Control Makes Women Unattractive and Crazy.” That was last week’s news. Now we have Jefferson Beauregard Sessions III as our new Attorney General, a man whose self-admitted racist statements (like calling a white civil rights lawyer a “disgrace to his race”) disqualified him from a federal judgeship in the 1980s but renders him a perfect fit for Trump’s team 30 years later. Next up is the Education Secretary. Granted, we dodged a bullet in that Trump did not name creationist religious reactionary Jerry Falwell Jr. to the post, as was rumored. Instead, he chose a woman whose major point of experience has been to give massive sums to the Koch brothers in a successful effort to tilt the nation right-ward. But Trump’s draining the swamp! Now comes word that Ben Carson as HUD Secretary. People act as though HUD is a nothingburger, but it is very much a burger. Under Obama, the Department has begun to successfully force cities to prove that they are affirmatively furthering fair and integrated housing. Last year, Dr. Carson wrote an op-ed decrying those measures as “mandated social-engineering schemes” and “downright dangerous.”  And to think that less than two weeks ago, Carson suggested he was unfit to run a federal agency because of his utter lack of knowledge and experience. (And here’s a fun reminder that HUD presents unique opportunities for corruption!) Finally, there appears to be an internal schism about whether to appoint Mitt Romney as Secretary of State or whether to fill the post with someone more “loyal” to Trump. Romney, recall, was pointedly critical of Trump: “Here’s what I know. Donald Trump is a phony, a fraud. His promises are as worthless as a degree from Trump University. . . . He has neither the temperament nor the judgment to be president and his personal qualities would mean that America would cease to be a shining city on a hill.” But apparently Romney’s willing to serve in Trump’s administration because hahahahahahaha nothing means anything anymore.

RAGE OVER “IDENTITY POLITICS”: Since Hillary Clinton won 2 million more votes than Donald Trump, the Democratic Party is in the middle of an internecine war about how desperately we must change absolutely everything about the party. By now you’ve likely seen the scurfuffle around Mark Lilla’s Sunday New York Times piece, urging the party to prioritize the desires of white male working class and rural voters (those mainstays of the Democratic coalition). There have been many thoughtful rejoinders to this piece; my favorites are from NY Magazine’s Rebecca Traister, Vox’s Matt Yglesias, and Slate’s Michelle Goldberg, who reminds us of the true peril that the people of color that make up the Democratic base face in the Trump era. As she put it, “The focus of left-of-center politics in the dark years to come must be on protecting the groups of people who are targets precisely because of their identities. To sideline their interests is to accede to a backlash that has just begun and will only get worse.” At my office, we had a long email debate about Lilla’s piece; I have included at the end of this week’s newsletter my take on the article and the question of “identity politics”. Here’s hoping we can move past this debate soon and start focusing on building the Democratic Party’s next generation of leaders at the local and state levels, areas we have neglected to our peril for far too long.

Must Read of the Week: Yes, we dodged the bullet on Rudy Giuliani being appointed as AG. But he is still in the running for many other cabinet posts. Even if you think you remember why Giuiani is a truly terrible, frightening politician, you really, really don’t. Read Radley Balko’s piece reminding us all why the idea of this man coming within 10 miles of power is terrifying.

And introducing our two new weekly features:

Apocalypse Watch of the Week: Matt Yglesias: We have 100 days to stop Trump from (permanently?) systemically corrupting the American political system.

Cuteness Comfort of the Week: Kid sees lobsters; excitement ensues.

My take on the Lilla article:

I really, really disagree with this article. I think it gets a remarkable amount wrong. It defines "identity politics" as that representing minorities and oppressed people, and seems to argue that we should just get back to the old fashioned default identity of white male interests, which somehow doesn't count as an "identity." Most absurdly, it asks the Democratic party to turn away from the policies and the people that form the raison d'être of the party--income inequality; civil rights and liberties for minorities; legal protections for the weak; a government bulwark against oppression by majority -- and become, what? A party that looks for support among disaffected and uneducated unemployed coal miners? This is not the path forward.

The article's thesis was shaky from the start, but truly lost me when it bemoaned the focus on non-white-male Great Men in high school history classes. Really? Our problem is the half-day lesson spent talking about Elizabeth Cady Stanton? We don't talk about the Founding Fathers enough? That's really his argument?

And how is it "ridiculous" for college students to be concerned about oppression, big and small, of their friends and peers whom this society has routinely overlooked? It may be a theoretical fight about "damn bathrooms" to straight white men like this author, but it is a fight about personhood and dignity for thousands of young trans people and their allies all over this country. If Anthony Kennedy can understand how one's dignity is tied up in issues of sexuality, then surely the Democratic party can.

And since when it is it a terrible idea to celebrate "the first X to do Y"? Aren't those the stories that uplift us, inspire us, repeatedly show us over and over how America is the greatest nation in the world (as the conservative-forced incantation reminds us)?

The author insists that we need to move to a set of policies that "affect a vast majority" of Americans. Of course, that is what the Democratic Party already stands for: health care for all; tax policies that benefit the vast majority rather than the richest few; environmental regulations that ensure the continuation of this planet as we know it; health and safety regulations to protect us and our surroundings; labor rules that ensure that workers are treated fairly and paid adequately. It is the GOP that strives to protect the interests of the few over the majority -- but because it wraps itself in the language of the white Christian male identity, it is seen as protecting the "default" and purportedly "majority" population (though of course white Christian men are NOT the majority any longer). But the Democratic Party also, crucially, stands for protections and benefits explicitly for the minority, against the majority: for the rights of Muslims against a reactionary and fearful majority; the rights of criminal defendants against a powerful state; the rights of gays, lesbians, trans people against an ignorant mob that sees them as less than human; the rights of women who have been shut out of this country's civic society for hundreds of years; the rights of the disabled; the rights of African Americans who have been systematically oppressed, slaughtered, scorned, beaten, driven away from the very moment of conception of this country up to the present day. These fights are not sideshows; they are not distractions from the cause. They are the reason we have politics. These are the highest and most noble purpose of the State, the reason our Constitution exists and is exulted. To shove these fights to the side -- to engage in them "quietly" -- is a betrayal not only of those groups (that maligned term) but of the principals that supposedly animate this country and that have always inspired the forces of progressivism. A "proper sense of scale"? These are people's lives.

I'll end just by saying that the predictability of those ready to throw overboard the interests of minorities for temporary political gain among white people makes it no less depressing or enraging. We must -- we must -- fight against this instinct.

(Also, are we really going to credit an author who makes mention of Ronald Reagan and Bill Clinton as models for effective politics and stays silent on Barack Obama?)

Jeff Toobin Got Ruth Bader Ginsburg Totally Wrong

In the March 11 issue of The New Yorker, Jeffrey Toobin pens a profile of Justice Ruth Bader Ginsburg, who is celebrating her 20th year on the Supreme Court this year. Though the piece (which he fleshed out in an interview with Fresh Air's Terry Gross this week) has some highlights—I defy you to read the note Ginsburg's husband wrote to her a week before his death without tearing up, and the descriptions of the 90-pound justice as a gym rat are priceless—Toobin utterly mischaracterized Ginsburg's years as a feminist litigator. He misses the point of her work entirely—and overlooks how revolutionary and paradigm-shifting that work truly was.

Toobin notes Ginsburg's first success in the Supreme Court, in the Reed v. Reed case. The Court invalidated a state law that said that, where a man and a woman are both qualified to serve as an executor of an estate, the man must always be preferred. After that, Toobin writes, Ginsburg "launched a series of cases targeting government rules that treated men and women differently."

The process was in keeping with Ginsburg's character: careful, step by step. Better, Ginsburg though, to attack these rules and policies one at a time than to risk asking the Court to outlaw all rules that treated men and women differently.

In the Fresh Air interview, Toobin elaborated: 

GROSS: You describe her approach in litigating women's rights as incremental, case by case as opposed to one sweeping case that would say women have to be treated equally in everything, and therefore a lot of laws will just have to be rewritten.

TOOBIN: That's right. And that's very significant, particularly when you start looking at her judicial career because Ginsburg is a methodical person, and she understood that the best way to win at the Supreme Court, or so she thought, and history proved her right, at least in her case, that you don't ask for too much.

He noted that Ginsburg "didn't ask the court to rule that all differences between the sexes, in terms of how they were treated under the law, were unconstitutional," a cautious approach he attributed to her view that "it's better to ask for narrow relief, ask for specific victories in specific cases rather than ask them to rewrite the law of sex and gender in the United States."

This is crazy. And a completely blinkered view of Ginsburg's enormous accomplishments in the 1970s. Ginsburg didn't bring a single unifying case asking the Court to declare that the Constitution requires exactly equal treatment between because that's not what she believed. It was not different treatment per se that Ginsburg fought against; it was the many legal codifications of stereotypes about gender norms that were unconstitutional, and in need of destruction.

Cary Franklin, a professor at the University of Texas Law School, has convincingly documented that the 70s-era feminist litigators were not driven by a desire for “formal equality” that would force women into men’s roles. Rather than forcing women into men’s world, Ginsburg strove to remake the social meaning of men’s and women’s roles altogether—or, at least, to ensure that the law could not cement those traditional notice of men’s and women’s place in society.

Ginsburg's cases thus sought to dismantle the legal codifications of stereotypical views of the roles that men and women should play in society—not to demand equal treatment in all things. So she brought the Reed to challenge the stereotypical view that men were more financially literate than women. And she brought the Wiesenfeld case, which Toobin also mentions, to challenge the stereotypical view that men have no business being stay-at-home parents. She brought Frontiero, a case about military spousal benefits, to challenge the stereotype that women were always dependent on their husbands, and that husbands were never dependent on their wives. And her brief in Craig v. Boren—a case about a law allowing 18-year old women but not men to buy some beer--argued that the law was premised on stereotypical views of what young men and young women "were like."

And these weren't just arguments Ginsburg was presenting to the Court. The Court, under Chief Justice Warren Burger, bought it. For example, if the Court were simply concerned about equal treatment, then it could have required both men and women to prove their dependence on their spouse to receive survivor benefits in Weisenfeld. Instead, it held that neither did—and that requiring husbands but not wives to do so was an unconstitutional codification of gender norms. Even if the assumption that men are more likely to be the primary earners had some statistical validity, the Court wrote, "such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support."

So when Toobin makes it seem like Ginsburg was just some practical-minded incrementalist, he fails to give her credit for the society-shaking, frankly revolutionary approach she was taking—and that she got the Burger Court to buy into: the idea that what was problematic was not unequal treatment per se, but rather unequal treatment that was premised on role-defining gender stereotypes.

Toobin is at his best when he provides behind-the-robes glimpses into the Court, whether it's Justice O'Connor's aerobics classes or Justice Souter's utter dismay at the Bush v. Gore decision. When it comes to legal analysis, though, he has trouble looking beyond conventional wisdom. It's frustrating that in writing about one of the giants of the feminist movement, he sells the towering Justice Ginsburg so short.

Hey NPR! Women Intellectuals Exist!

If you're like me, you can tell time by the NPR show playing on your radio. The nasally guffaws of Click and Clack on a Saturday morning tell me I've slept way too late. At night, BBC's World Service tells me to get in bed and turn out the light. And Intelligence Squared, the weekly "Oxford-style" debate show I have recently discovered, tells me it's time for an entertaining and thought-provoking Sunday lunch.

An entertaining, thought-provoking, male-dominated lunch, it turns out.

Intelligence Squared is an hour-long debate show whose podcast gets over 100,000 downloads each month. The show presents a proposition--for example, "Israel Can Live with a Nuclear Iran"--and brings in four to six panelists to debate it. The audience votes at the start and the end of each debate, and whichever side moves the most voters wins. The show, which airs on over 200 NPR stations--and, as of January, will air nationally on PBS--aims to "bring together the world’s leading authorities on the day’s most important issues," according to its website. But an analysis of the entire 69-debate history stretching back to 2007 reveals that the show all too often defines the "world's leading authorities" as male.

Of 69 debates, a full 29 (42%) featured all-male panels. Another 27 had only one woman on the panel. And over 91% of the debates featured panels that were either all or majority male.

By contrast, only four panels had equal numbers of male and female debaters, and a paltry two debates featured more female than male panelists. Not a single panel featured all women. Notably, one of the two debates with more women than men centered around a gendered question: "It's Wrong to Pay for Sex." And because the host and moderator is a man, listeners to shows with an evenly split panel would still hear a discussion dominated were dominated by male voices.

The show's website features a stirring tribute to the power of debate, "the cornerstone of American progress." Debates, the show proclaims,

embody our democratic ideas as a society, proving both sides of an argument offer intellectually respectable points of view. Too often we are isolated in “echo chambers,” funnels through which our opinions are reinforced by biased media outlets, personalized technology and like-minded associations. Debate challenges our own lack of objectivity, where our minds have been contaminated by conviction.

It's a worthy goal. But instead of offering robust, diverse perspectives on the most pressing questions of our time, Intelligence Squared has created its own "echo chamber," this one reverberating with the voices of men.

What's going on here? How is it that the show's producers haven't found it uncomfortable, if not embarrassing, to feature so many all-male discussions? This is a particularly puzzling question given that the production is almost entirely female, including executive producer S. Dana Wolfe.

I called up Intelligence Squared's PR contact to see if I could get some answers. Although they would not comment on the record to a freelance writer, the person I spoke with said that the extreme gender imbalance of the show's panelists is "something that has been brought to their attention."

It's reassuring that all-female production staff is aware that it's a problem for a show priding itself on "intelligent discussion" to marginalize female voices. But that awareness doesn't appear to be changing anything: Of the four upcoming debates listed on the website, two feature all male panels, one has only one woman, and the fourth has only two confirmed guests--both of whom are men.

Hey Sully! MSNBC and Fox News Are Not Equal

Andrew Sullivan loves to equate MSNBC and Fox News. They’re both “propaganda channels” that “poison our discourse,” according to Sullivan. This is, well, silly. But I would hope that, at the very least, this week's revelation of the Obama Administration’s justification for assassinating Americans abroad starts to change his view. Put simply, if MNSBC is the propaganda wing of the Obama Administration, he needs to hire himself some new mouthpieces.

First, it must be noted that it was NBC News’ Michael Isikoff who broke the story late Monday night. Within hours of posting the story, he appeared on MSNBC’s “Rachel Maddow Show” to discuss the white paper; Maddow introduced the segment by explaining the lengths news organizations and the ACLU have been going to in an effort to access to the legal memo authorizing these drone strikes. Referring to the Obama Administration’s insistence that the program is legal, she said, “We know you think it’s legal. Why do you think it’s legal?”

The discussion continued on MSNBC throughout Tuesday. On the midday show “The Cycle,” the panelists erupted in a fierce debate over the wisdom and legality of Obama’s drone program. “The point here is that there’s this sort of shadow government, almost,” host Steve Kornacki warned. “It’s taking place behind the scenes, and that’s where the Obama Administration has wanted it to be.”

And then to Sully's favorite, Ed Schultz (whom he has intimated is a propagandist unworthy of comparison to even Pat Buchanan). As such, he must have been pounding the table in defense of Obama’s authority, and decrying critics as right-wing Nazi-loving fascists, right?

SCHUTLZ: I have to say, as an American citizen, we are all entitled to due process under the law. And this document gives the president the ability to act as judge, jury and executioner. I’m troubled by it. It doesn`t meet the moral or the Constitutional standard that we expect of any administration.

And I have to say that liberals have come certainly a long way to crying about the FISA court and the Patriot Act and listening in on conversations to literally taking out innocent people around the world. We’re losing the moral high ground by doing this.

And even more troubling is that there are people in Washington who are ominously silent and not questioning this process and willing to stand behind the legal opinion of the Justice Department. This is President Obama’s legacy right now. It is dangerous.

[…]

There is no due process here whatsoever.

[…]

Well, I think Democratic senators need to step out and answer if this was the Bush administration, would they be so silent.

In short, MSNBC is pretty damn outraged about the Obama Administration’s insistence that it can kill any American, anywhere, whom it deems (through a secretive process) to be a threat. Now let’s compare that to Fox News’ reaction to the biggest terrorism-related scandals of the Bush Administration, shall we?

Here are just a few examples of Fox defending Bush’s wiretapping program immediately after the New York Times revealed it (transcripts via Lexis):

HANNITY: You know, Victoria, it seems to me that the left wants it both ways. They want to be able to blame Bush any time anything happens but, on the other hand, they're not allowing him to take what seem to be clearly, obvious, commonsensical-type steps to ensure that we monitor these people that we know are out there because we already know what their intentions are.  […] There's no evidence that any law was violated in any kind. It seems like, once again, the anti-Bush "New York Times" wants to create a conspiracy where there is none. [12/16/05]

FRED BARNES: Now, I think this was an easy call for Bush. He had to choose between protecting America's national security and worrying about the privacy of somebody linked to al Qaeda, who's on the phone to some al Qaeda official overseas. I mean, that's an easy call, I think, and the president made the right one. And, and, and the civil libertarians may not, but then they've forgotten about 9/11, and (INAUDIBLE) and the fact that we are at war, or they don't care about it. [12/17/05]

KRAUTHAMMER: [Bush] wins on this. And he waived the legalities when he painted it as us and them, who do you care about? He is weak on the legalities, but I think you could make a plausible argument that you might accept it on the basis of authorization of use of force on the war against al Qaeda. It's not that strong an argument, but politically, it wins hands down. [12/19/05]

On torture, Fox hosts were big fans. Hannity repeatedly defended Bush’s torture program. Bill O’Reilly could hardly have been more enthusiastic. And Fox hosts didn’t see why Abu Ghraib was such a big deal either.

So when the Obama Administration declares power to assassinate American citizens whenever an unspecified member of the Administration declares, on some unknown piece of evidence, that the person is a threat, MSNBC hosts immediately and harshly criticize both the policy and the secrecy behind it. When the Bush Administration is revealed to have illegally spied on U.S. citizens and tortured detainees, Fox hosts insist the programs are legal and that the whole thing is a left-wing plot.

But yeah, they’re totally the same.

THIS DAY IN POLITICAL NEWS -- 6/28/12 [OBAMACARE SURVIVAL EDITION]

It was such a big day -- and there were so many people who initially got it wrong -- that I thought I would revist this list one last time to give you my take, at least, on what happened, why it’s important, and how you should feel about it.

WHAT THE COURT ACTUALLY SAID:

First, the Individual Mandate Is Constitutional When Construed as a Tax. There were three opinions issued today, with shifting majorities and odd pairings that made it a bit confusing to figure out what was actually decided. First, on the individual mandate, five justices held that Congress did not have the power under the Commerce Clause to require people to enter into the health care market and purchase something. Justice Roberts’ opinion was “for the Court,” but in fact was joined by no other justice, at least on this question. The four conservatives (Thomas, Alito, Scalia, and Kennedy) wrote their own opinion. The two opinions come out the same way on this question, but the 4 Amigos language is a bit starker, a bit more hyperbolic (surprise surprise), and certainly farther reaching. That makes Roberts’ opinion the controlling one. Although Ginsburg accused him of a “cramped” and retrograde reading of the Commerce Clause, his opinion basically only outlaws future mandates. The four uber-conservatives, by contrast, call into question the legitimacy of broad swaths of federal exercises of power, including at one point suggesting that the Departments of Education, Health and Human Services, and Housing and Urban Development may be unconstitutional.
    Roberts’ holding on the Commerce Clause question is what caused the initial reports to say that the mandate was struck down. Those reporters had stopped reading too early. Roberts, now joined by the four liberals (Kagan, Sotomayor, Breyer, and Ginsburg) held that the mandate could be construed as a tax on those without insurance, and this tax fell within Congress’s legitimate taxing authority. The tax power is very, very broad, and this opinion essentially left it limitless.

Second, the Medicaid Provision Was Upheld, But Modified. The Court next addressed the expansion of Medicaid, which adds about 17 million people to the Medicaid rolls. The states argued that the expansion was unconstitutionally coercive, because the law said they either had to accept the new expansion (and the new federal money coming along with it) or, if they refused, they would have to give up all their Medicaid funding, which totals about 20% of state budgets. On this question, seven justices agreed with the states (only Ginsburg and Sotomayor disagreed). But Roberts, joined again by the liberals, said that the way to avoid this unconstitutional coercion was to make the new funds separable from the old funds. So a state could refuse the expansion, and the new funds, without imperilling their other Medcaid funding. (Soto and Gins, while rejecting the notion that the funding was coercive to begin with, agreed that it could be separated from the older funding, thus giving Roberts five votes for that fix.)
    The Medicaid portion thus imposed restrictions on the Congress’s otherwise vast Spending power -- for the first time ever, in fact. Roberts wrote that the federal government can use its money to pressure states into doing certain things. “But when pressure turns to compulsion, the legislation runs contrary to our system of federalism.” He said that this take-it-or-leave-all-of-it Medicaid expansion gave states no real choice; “it is a gun to the head.” (He also insists that the expansion creates a whole new program that is effectively not Medicaid anymore, because it no longer focuses on providing care for the “neediest among us,” the mission of the original Medicaid. Ginsburg knocks this assertion down by pointing out that the expansion covers those earning up to 133% of the poverty level, or an annual income of $14,856. Surely, she says, these people “rank among the Nation’s poor.”)

ROBERTS = PROGRESSIVE HERO: That headline is a joke, of course, but it is true that it was Roberts, and not Kennedy, who provided the crucial fifth vote. If it had been up to Kennedy, not only would the mandate and the Medicaid expansion have been struck down, but the entire act -- including the parts that have already gone into effect -- would have been held invalid. That’s what he and his three buddies wanted to say. Roberts threaded the needle so that he could write an opinion that at least gives lip service to limits on the Commerce Power, and provides some potentially real limits on the spending power, while still upholding the law and avoiding making the far-right Court a central issue in this political campaign. I think it’s stilly for liberals to say that Roberts has proven himself to be entirely principled and a real judicial moderate or minimalist (see, e.g., Citizens United). And I think there is something to the idea that this gives Roberts enormous cover to make some super radical decisions in the future (on affirmative action, the Voting Rights Act, etc) and still be able to plausibly deny being a partisan hack. But even with those caveats, this was a hugely important and consequential move by Roberts, and it’s undeniable that Roberts single-handedly saved Obamacare.

AT BOTTOM, OBAMA WINS BIG: In the end, President Obama had a very good day. The entire law was upheld, with only a small change to the Medicaid expansion that most likely won’t have an effect since the vast majority of states will take the free money handed to them. I would not be surprised in the slightest to see the poll numbers on Obamacare to improve, and improve dramatically. People don’t like laws that are stuck under a cloud of uncertainty and questionable legality; now that the Supreme Court, led by George W. Bush-appointee John Roberts, has sustained it, they can be more sure that there’s nothing fishy going on, nothing secretly underhanded and scary. And beyond politics, we can’t ever forget that the mandate itself attributes for more than 20 million of the 33 million Americans who gain access to insurance under this law. If the mandate had been struck down (let alone the entire law), millions of people would be thrown off insurance plans they just got on, or would be denied the chance to ever have affordable access to medical care. This is a huge win for them. Of course, it will likely fire up the GOP base and give them a bigger reason to fight to defeat Democrats in November (Mitt Romney is already lying through his teeth about the bill). But that right-wing anger won’t have much of anywhere to go: After all, it was their supposed standard-bearer who shepherded his own mandate-featuring health reform into law just a few years ago. (Indeed, one of the best parts of Ginsburg’s opinion is her multi-paragraph tribute to the brilliance of Massachusetts’ solution to the health insurance problem. “In coupling the minimum coverage provision with guaranteed-issue [meaning no denial for preexisting conditions] and community-rating prescriptions [meaning everyone in a given age bracket pays pretty much the same rate], Congress followed Massachusetts’ lead.”)

OTHER GOODIES NOT TO MISS: There’s no reason really to report this, but it’s a fun exchange in the opinions. Roberts brings up the dreaded broccoli argument, though this time framing it as forcing people to buy “vegetables” in order to improve their diets, in order to reduce obesity, which affects health care, which has substantial effects on interstate commerce. This frightening scenario proved to Roberts that the government’s assertion of power under the Commerce Clause was unconstitutionally enormous. (The four conservatives went even farther, insisting that the government’s assertion of the scope of the Commerce power “is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”) Ginsburg, again, exposes these arguments--what she calls “the broccoli horrible”--for the absurdity that they are.

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.

This piling on of inferences, Ginsburg says, is what the Court has always refused to do. What’s more, unlike a vegetable mandate targeted at eventual health outcomes, requiring people to buy insurance “attacks the source of the problem directly, in a single step.” The best part of her argument comes when she quotes Robert Bork to mock her colleagues: “Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”  BOOM.

A PERSONAL WRAP UP: You’ll notice a distinct dearth of links in this update. That’s because I have unfortunately not had really any time yet to digest what others have been saying. (Except for the circulating theory that the four amigos were originally writing for the whole court but then lost Roberts at the last minute, evidenced by the fact that they call Ginsburg’s opinon “the dissent.” This I have read and have rejected: They refer to her opinion as the dissent when discussing the Commerce Clause stuff, and her opinion was the dissent as it pertained to the Commerce Clause. Roberts has clearly been working on this opinion for a long time; he didn’t just pull it together at the last minute.) I haven’t had time because I’ve been working with NPR’s Nina Totenberg all day, which is my humblebrag way of saying that I was in the Court when the announcement came down this morning. Sadly, I was also seated directly behind a column and could only see the small face of Justice Breyer (who said nothing) by craning my head to peer through a metal grate. But still! The press was all in a tizzy, and I can tell you that I certainly experienced a roller-coaster of emotion and excitement that I could never have predicted. From the moment Roberts began his Commerce discussion, I knew the mandate was doomed. I couldn’t believe it, as I was frantically taking notes, that the Court was about to gut Obamacare. And then--out of nowhere--he takes a right turn, and begins discussing the little argument that no one (except Jack Balkin) ever paid much attention to! The Tax power! It was a tax! The adrenaline among the press corp was palpable; no one knew what to expect, and no one could believe that the mandate had just been clutched from the jaws of sure defeat and rescued by The Tax Man. My heart sank again during the Medicaid discussion, realizing that, coupled with the Commerce language, this opinion could mean a significant blow to federal power. But scholars and commentators we spoke to today made me rethink that worry. It is of course possible that this opinion could be the basis of future limitations on federal power, most likely under the Spending clause. But the Commerce stuff was really limited to mandates, the taxing power remains essentially unlimited, and even the Spending limits are more hypothetical than real. All in all, this was an incredibly exciting day to be at work, a huge win for the American people (not to mention Obama), and an experience I will not soon forget.

Some Links for further reading: The Slate breakfast table discussion (featuring, of course, Dahlia Lithwick) can’t be missed. This one on how terrible arguments won the day looks good, but I haven’t read it. SCOTUSblog is hosting a symposium, with lots of commentary from various angles. And here’s Nina’s story, of course.