Oh? Is that an admission from Linda Greenhouse that Bush v. Gore wasn't really all that bad? Actually, yes!
In the inconclusive aftermath of the 2000 presidential election, a growing sense of urgency, even crisis, gave rise to a plausible argument that someone had better do something soon to find out who would be the next president. True, a federal statute on the books defined the “someone” as Congress, but the Bush forces got to the Supreme Court first with a case that fell within the court’s jurisdiction. The 5-to-4 decision to stop the Florida recount had the effect of calling the election for the governor of Texas, George W. Bush. I disagreed with the decision and considered the contorted way the majority deployed the Constitution’s equal-protection guarantee to be ludicrous. But in the years since, I’ve often felt like the last progressive willing to defend the court for getting involved when it did."Here" = King v. Burwell. That's the new Obamacare case that's freaking people out.
That’s not the case here. There was no urgency....
This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect.Naked power grab? It's a naked power grab to grant review of a case that's been decided by a Court of Appeals panel, just because there's no split in the circuits? The Supreme Court has discretion over whether to grant certiorari, and its own rule on "Considerations Governing Review on Writ of Certiorari" refers to "compelling reasons," then lists a few things that it says are "neither controlling nor fully measuring the Court's discretion" but that "indicate the character of the reasons the Court considers." One of the things on the list is a split in what different courts have said about federal law. But another is: "a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court." So: It's an important question. Where's the power grab — naked or clothed?
The nakedness metaphor must have really stood out to the headline writer. The piece is called "Law in the Raw." Greenhouse doesn't like that the Supreme Court inserted itself — its naked, grabby self — into the controversy when there was going to be a rehearing by the full D.C. Court of Appeals (which had vacated the judgment of the 3-judge panel). But if it's an important question that in the end the Supreme Court is going to resolve, maybe it's also important not to drag things out. Get it resolved so we can move forward either knowing things need to be redone or freed from the cloud of possible illegality.
But Greenhouse's real complaint is that she — like many others — reads the Court's impatience as revealing the opinion on the merits: "There is simply no way to describe what the court did last Friday as a neutral act... [T]he justices have blown their own cover...." By "the justices," she means the 4 Justices she presumes voted to grant review:
Certainly Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. — the four who two years ago would have invalidated not only the individual mandate but the entire law — voted to hear King v. Burwell....Wait! Taking cases based on self-interest actually would be naked power-grabbing. I love the way Greenhouse signals to Roberts what he needs to do to win the respect of the legal elite, not that he can ever really have it. He can have a little, and, you know, sometimes a little love, with true love withheld, is just what keeps a love-seeker pursuing love... nakedly grabbing.
An intriguing question is whether there was a fifth vote as well, from the chief justice. I have no idea, although I can’t imagine why he would think that taking this case was either in the court’s interest or in his own; just two months ago, at a public appearance at the University of Nebraska, he expressed concern that the “partisan rancor” of Washington could spill over onto the court.