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Withholding the Tax Decision: SCOTUSblog on the ObamaCare Decision

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Having served as the liveblog link to a widely-anticipated court decision myself, I probably read Tom Goldstein’s tick-tock of how the decision got reported differently than others. Most interesting for me?

SCOTUSblog is not credentialed to cover SCOTUS

Goldstein describes how most major news outlets as well as the White House listened in on a conference call SCOTUSblog had to discuss the ruling as it came out. He notes that Fox managed to correct its incorrect initial reporting because Megyn Kelly was watching SCOTUSblog. He describes other news outlets–like NPR–citing SCOTUSblog as their source.

And yet, even with all those people relying on SCOTUSblog for coverage of the decision (and all other decisions), SCOTUSblog is not credentialed to cover the court.

The Supreme Court will not grant SCOTUSblog a press credential.  Lyle Denniston is the only member of our team permitted in the press area; he has a press credential because of his reporting for WBUR in Boston.  There are six other members of our team nearby, running nine computers on eight separate Internet connections.

I’m curious what the justification for this stance is. Does the Court care more about its prestige than ensuring that what amounts to its own newswire be able to report quickly and accurately?

SCOTUS decided not to email the decision

Perhaps that’s the case. After all, SCOTUS also decided not to email the decision to reporters (and the parties to the case), though they have done so in the past.

The Court’s own technical staff prepares to load the opinion on to the Court’s website.  In years past, the Court would have emailed copies of the decision to the Solicitor General and the parties’ lawyers once it was announced.  But now it relies only on its website, where opinions are released approximately two minutes later.  The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.

But it does.  At this moment, the website is the subject of perhaps greater demand than any other site on the Internet – ever.  It is the one and only place where anyone in the country not at the building – including not just the public, but press editors and the White House – can get the ruling.  And millions of people are now on the site anxiously looking for the decision.  They multiply the burden of their individual visits many times over – hitting refresh again, and again, and again.  In the face of the crushing demand, the Court cannot publish its own decision.

The opinion will not appear on the website for a half-hour.  So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.

Aside from being a boneheaded technical decision, it is, again, a statement about the philosophy of information at the Court. Why insist that the decision go through those physically at the Court, where people have little space or time for close reading?

Who hacked SCOTUSblog?

And here’s the bit that has me most intrigued. When we covered the Libby trial, we were hounded by denial of service attacks, including on verdict day–though we were also operating on a less stable system with almost no staff and little time to prepare for the technical demands of the coverage, which I think made the attacks rewarding.

Plus, it wasn’t surprising someone would attack FDL during the Libby case; because we served as the wire service for the trial, and because we didn’t unquestioningly repeat whatever Barbara Comstock claimed, we ended up undermining Liibby’s defense team’s best efforts at spin. So I’ve always assumed our DNS hackers were conservatives trying to cut off our coverage, leaving the more favorable Libby spin by default.

So it made sense that we were getting attacked.

But SCOTUSblog?

Our problem at the moment is that someone is trying to crash the blog.  At 10:00 exactly, hackers are launching a “distributed denial of service” attack with 1,000 page views per second to try and bring us down.  It does not work; our tremendous Deputy Manager Max Mallory has spent months augmenting our capacity, and the hackers give up after a few minutes.

The only one who–assuming good faith interest in reporting accurately–who I can imagine having a motive to hack SCOTUSblog are other media outlets who don’t want a competitor to draw off potential readers and viewers.

Alternately, there’s the possibility that someone wanted the decision reported inaccurately. Read more →

The John Roberts-Anthony Kennedy Smackdown

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There are several fascinating details in Jan Crawford’s confirmation that John Roberts did, indeed, flip his vote on ObamaCare.

Most interesting is Crawford’s description of the desperate efforts on the part of Roberts and Anthony Kennedy to persuade the other to flip their vote.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”

I’m also fascinated by Crawford’s oblique description of why this leaked from the normally tight-lipped Court.

The justices are notoriously close-lipped, and their law clerks must agree to keep matters completely confidential.

But in this closely-watched case, word of Roberts’ unusual shift has spread widely within the Court, and is known among law clerks, chambers’ aides and secretaries. It also has stirred the ire of the conservative justices, who believed Roberts was standing with them.

Note, too, that Crawford uses the same word Ramesh Ponnuru used–“wobbly”–to describe Roberts’ position, suggesting he may have had the same sources she did (and the word seems to come from a Justice himself).

It was around this time [in May] that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

Finally, there is Crawford’s not entirely convincing explanation for the relics in the dissent that seem to suggest Roberts had a hand in crafting the dissent, too.

The two sources say suggestions that parts of the dissent were originally Roberts’ actual majority decision for the Court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

If true, those relics, which violate normal protocol for referring to other opinions, reflect a very big affront to Roberts’ governing opinion.

There’s a lot in Crawford’s story that seems to treat the conservative leakers with too much credibility–not about the law, but about the pissing contest that has ensued. In any case, the very fact that it took just a few days to make it into a story add to the intra-party sniping.

Nate’s “Common Sense” on ObamaCare

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Nate Silver has a post purporting to show that it is “common sense” that SCOTUS overturning ObamaCare (Nate calls it the “health care bill,” which it is assuredly not) would not be good for Obama.

He argues his point by pointing to the very same data I did when arguing there are things Obama could do to make a SCOTUS loss work to his advantage. Nate notes that Obama doesn’t need ObamaCare one way or another to enthuse his base. Nate acknowledges that swing voters–the people who will decide the November election–don’t like ObamaCare. And then he notes that these same swing voters in general have a good opinion of SCOTUS. Nate summarizes the “common sense” he derives from this data this way:

However, the argument that the bill being struck down would actually help Mr. Obama seems to have little grounding in the evidence — nor, frankly, in common sense. Among the voters that are most critical to Mr. Obama’s re-election prospects, the Supreme Court is more popular than the health care bill. If the justices declare one of the president’s signature accomplishments to be unconstitutional, it would not be a boon to him.

The people who will decide the election don’t like ObamaCare and so–Nate’s common sense says–if law they don’t like goes away (in part or whole?), they will be less likely to vote for the guy who brought them that law they don’t like that has gone away. “Common sense”!

Let’s unpack the things Nate doesn’t talk about, in addition to his calling a health insurance law a health care bill.

First, he does what ObamaCare boosters tend to do in these discussions, not distinguish between a scenario where just the mandate is thrown out, and one in which the entire law is thrown out (due, largely, to the Administration’s own arguments about severability). Each scenario, it seems, would have different results. If SCOTUS threw out that part of the law people disliked most, it might make everyone–except the insurance companies and those arguing that a mandate is the only way to make this work–happy, particularly if the Administration promised to find a solution that would make the whole thing work (they won’t). Whereas if SCOTUS threw out the whole thing, it would lead people to become aware of the parts of the law people really do like, such as coverage for those with pre-existing conditions and kids under 26, and therefore develop a new appreciation for the law SCOTUS shot down. I think there are potential upsides and downsides for Obama in both those scenarios, but they are two different scenarios, and any “common sense’ ought to acknowledge that.

And then there’s the other assumption: that if SCOTUS threw out ObamaCare Obama would be utterly passive; that reactions to the SCOTUS decision would be entirely unaffected by Obama’s response because (presumably) there wouldn’t be one.

We already know that Obama will respond because he’s doing so already–by attacking the SCOTUS that, as Nate points out, is better liked by the people who will decide November’s election than ObamaCare is (in response, the 5th Circuit has gotten an order of magnitude more petty, threatening to let the whole thing devolve into an intra-branch squabble no one will like). I have already suggested that’s probably the least productive response; if that’s going to be Obama’s response, I agree, losing at SCOTUS will hurt him.

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ObamaCare SCOTUS Reaction: Why Not Find a Way to Make the Benefits Worth the Price?

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I was going to let bmaz handle the ObamaCare debate. But then I read this Jonathan Cohn piece–which asks whether SCOTUS’ likely decision to strike down the mandate will delegitimize the court. And I had to respond.

Cohn started his discussion on legitimacy last week with this post. In addition to, as bmaz argues, downplaying the importance of the limiting principle, Cohn describes how a named plaintiff in the case, Steven Hyder, explained his involvement in the case. Cohn focuses rather more on Hyder’s incoherent TeaParty rhetoric…

“It’s a complete intrusion into my business and into my private life,” he told me. “I think it’s one big step towards a socialist society and I’m purely capitalist. I believe in supply-side economics and freedom.”

Than on his more basic description of why he hasn’t bought health insurance…

He said his motive was straightforward. He’s opted not to carry health insurance because he doesn’t think the benefits justify the price, and he doesn’t want the government forcing him to do otherwise.

I’m rather more interested in this “straightforward motive” bit: Hyder says the benefits don’t justify the price.

I have no idea what Hyder’s income is, but remember that for around 16 to 19% of people affected by the mandate, buying health insurance would only limit, but not eliminate, the possibility of medical bankruptcy, without making health care for serious but not life-threatening problems financially accessible. That chunk of people would not be able to afford to use the insurance for anything more than the guaranteed preventative care and catastrophic care. And yet they would be asked to pay up to 8% of their income for this badly inadequate insurance.

Hyder may spout TeaParty rhetoric that makes it easy to dismiss him, but he also points to one of the realities of health insurance in this country: it is very expensive and for many people, its benefits may not immediately justify the cost.

With all that as background, let’s turn to Cohn’s catalog of opinions on whether SCOTUS’ decision will delegitimize the institution (note: Cohn doesn’t say whether he thinks SCOTUS will throw out just the mandate or the whole kit and kaboodle, which seems rather important, but the Administration’s own choices and arguments about severability may be responsible if the latter occurs).

To summarize the arguments Cohn lays out (these are my summaries–apologies for any distortions of the views portrayed):

Cohn: Overruling an act of Congress should erode the Court’s authority.

David Bernstein: The ruling won’t undermine the Court’s legitimacy because those who might object to it–liberal journalists, lawyers, and activists–have too much invested in the Court to make the case.

Scott Lemieux: The ruling won’t undermine the Court’s legitimacy because a significant chunk of elite opinion and a majority of the public would find the decision legitimate. And also, the ruling won’t lead to anything better because the insurance companies, which are the key agent, won’t let anything better arise.

Andrew Koppelman: The ruling will undermine the Court’s legitimacy because it will “force” Obama to spend “millions of dollars worth of television ads trying to persuade the American public that the Republicans on the Court are a bunch of despicable political hacks” and negative advertising works.

Of note, look at the differing emphasis on who has agency to affect the Court’s legitimacy: the liberal commentariat, insurance companies, and Obama.

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ObamaCare Week Is a Great TIme to Support Pro-Choice Trevor Thomas

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Last week, for its 2-year anniversary, Democrats rightly celebrated that ObamaCare has made preventative health care–things like mammograms–accessible for free to 45 million women.

And this week, as the ObamaCare hearing represents the biggest event at SCOTUS since Bush v. Gore, Democrats continue to celebrate ObamaCare (which is a good thing, politically; Obama should have done this a year ago).

But no one is talking about the biggest error the Democrats made aside from selling out the public option: letting Bart Stupak, an anti-choice MI Democrat, roll back access to abortion for women in every Congressional District in America. Not only have Democrats forgotten that their own tolerance for anti-women stances hurt Obama’s signature issue (and hurt their chances in 2010), but they’re back at it–recruiting anti-choice self-funders like Steve Pestka rather than backing pro-choice candidates like Trevor Thomas.

It’s as if the Democrats have put a price tag on women’s health, one they’re not willing to invest to pay.

There are a lot of reasons why Trevor Thomas is the better choice to take on Justin Amash in MI’s 3rd CD: his working class background, his push to address MI’s high unemployment rate for Veterans, his call to do something about the looming student loan bubble.

But this week, of all weeks, it’s important to make clear that it is not acceptable to do what the Democrats have done, decide that fighting for women’s issues is simply too much work and too much money.

Support Trevor Thomas. Support Trevor Thomas on ActBlue.