Last laugh for Republicans in the SCOTUS session that was

Democrats were still in their happy dance over Supreme Court decisions preserving ACA subsidies and legalizing gay marriage throughout the U.S. when, in its final orders of the year, the Court agreed to hear cases poised to gut pubic unions and affirmative action.

In Friedrichs v. California Teachers Association, ten California teachers are challenging a requirement that they pay fees to the teachers union for nonpolitical services, chiefly collective bargaining. That's the type of provision that Scott Walker killed in Wisconsin; without it, pubic sector unions wither. As Mark Joseph Stern at Slate points out, "there is virtually no chance" that the Supreme Court will rule against the teachers:

The case against King, by Scalia, Kennedy et al

The plaintiffs in King v. Burwell claim that the ACA's creators intended to coerce states into setting up their own exchanges by authorizing state-established exchanges alone to credit subsidies to buyers -- denying that power to the backup federal exchange.

In response to this manifestly absurd assertion of intent, the law's supporters have pointed out that no one involved in the law's design, passage or implementation understood such coercion to exist; that laws that make federal grants to the states conditional on specific state action invariably spell out the consequences of non-participation; that the ACA's clear intent is to provide near-universal coverage; and that the ACA's core provisions were designed to be interdependent, so that denying subsidies to residents of some states would render the law inoperable.

On  all of these points, no participant has been so eloquent as the four dissenting Supreme Court justices in NFIB v. Sebelius, the suit challenging the law's constitutionality, who asserted that the entire law should be struck down.

In their dissent, Justices Scalia, Kennedy, Thomas and Alito argued repeatedly that to strike down any core provision -- e.g., the individual mandate or the Medicaid expansion -- was to thwart the intent of the law's creators and render the remaining parts of the law unworkable -- hence the imperative to strike down the whole law.

Abbe Gluck has highlighted the dissenters' most direct assertions of interdependence of parts, laying particular stress on their observation that the law's "system of incentives collapses if the federal subsidies are invalidated" because without the subsidies, "the exchanges would not operate as Congress intended and may not operate at all" (dissent, p. 60).

Equally striking is the dissenters' argument that making the Medicaid expansion fully voluntary, as the Court majority did, would also thwart Congress's manifest intent to provide universal coverage and would thus render the entire scheme unworkable.

The real world case against King: Should the Supreme Court impose "risks and uncertainties" on U.S. economy?

Leave aside for a moment the frankly ridiculous question of whether the text of the ACA authorizes premium subsidies to flow through the federal exchange. .Timothy Jost, surveying 30 amicus briefs filed to support the IRS' reading of the law to that effect, first covers those primarily engaging with the text of the law then turns to those from stakeholders that detail the real-world effects of gutting the ACA.

A note before looking at Jost's powerful survey of these pleadings. Some would argue that these real world effects are immaterial: either the law authorizes subsidies to be credited through Healthcare.gov or it doesn't. As I noted once before, though, the conservative justices who dissented against  the 2012 decision that upheld the constitutionality of the ACA  demonstrated their sensitivity to the real world effects of Supreme Court decisions in that very dissent.

Justices Scalia, Kennedy,Thomas and Alito argued that since the individual mandate was unconstitutional the whole law must be struck down because all its key provisions were interdependent and many of them would wreak economic havoc if left to operate with a core provision removed.  They were quite specific about the potential consequences of disfguring the law without killing it:

The conservative justices shake the Etch-a-Sketch -- twice

For supporters of the Affordable Care Act, the tea leaves after oral argument in the Supreme Court were bad enough. In recent days, though, worse omens have deepened the gloom, as the conservative justices have shown signs of clearing the conceptual decks  for a strike-down of the individual mandate at least.  Perhaps implicitly acknowledging that recent legal precedents suggest that the mandate is constitutional, they have indicated a new willingness to cast aside the judicial principle of stare decisis -- let the decision stand. In fact, in the past week, two justices have signaled a willingness not to let their own decisions stand.  And both those decisions have a bearing on the mandate's constitutionality.

First up is Scalia, who is soon to release a new book that has been reviewed by the New York Times. TPM's Sahil Kapur highlights the relevant section:

The day American democracy died?

Here's a news snippet, as excerpted in Mike Allen's Playbook, that perhaps lays bare the arc of U.S. history since 1980. And it doesn't bend toward justice:

NINE-FIGURE DONATION TO ROMNEY? "Adelson's Pro-Romney Donations Will Be 'Limitless,' Could Top $100M," by Forbes' Steven Bertoni : "Sheldon Adelson, along with his wife Miriam, ... donated $10 million to the leading Super PAC supporting ... Mitt Romney-and that's just the tip of the iceberg. A well-placed source in the Adelson camp with direct knowledge of the casino billionaire's thinking says that further donations will be 'limitless.' Adelson, who has built Las Vegas Sands into an global casino empire, will do 'whatever it takes' to defeat Obama, this source says. And given that Adelson is worth $24.9 billion-and told Forbes in a recent rare interview about his political giving that he had been willing to donate as much as $100 million to his initial presidential preference, Newt Gingrich-that 'limitless' description telegraphs potential nine-digit support of Romney." http://onforb.es/KpzkDk

The "arc" has been sculpted by Republican-appointed Supreme Court justices who, beholden to an ideology that admits no distinction between money and speech, have literally sold American democracy down the river to the GOP's corporate and megarich individual backers.

Attention Alito, Roberts, Scalia: the ACA has a catastrophic coverage option

Excuse the (edited) repost: I think the info below is important (see also 4/5 update - Marty Lederman raises the possibility of a more limited mandate; 4/10 update - the AP weighs in; 4/12 update, the mandate as self-limiting principle; and 4/20 update - response to Jon Cohn). If I'm missing something, please let me know:
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Attention, Justices Roberts, Alito, Scalia: your objection to the extent of the individual mandate in the ACA may be based on at a partial misunderstanding. Or at least, on a failure by Solicitor General Donald Verrilli and the four justices supportive of the ACA to highlight an important provision of the law. That is:  the Affordable Care Act includes a catastrophic coverage option for people under thirty and others who meet certain financial requirements.

In questioning the right of the Federal government to require individuals to buy insurance, the justices glided past the argument that the requirement was justified because the cost of care for the uninsured drives up the cost of health care for everyone -- that we are all in the health care market -- by asserting that not everyone in the market needs the range of services that policies offered in the insurance exchanges are required to cover. This objection was hammered repeatedly, in a variety of ways, by Roberts, Alito and Scalia, and by Michael Carvin arguing for the plaintiffs.  Here's the first such assertion in the transcript:

JUSTICE ALITO: But isn't that really a small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in -- in 2016.

Respondents -- the economists who have supported the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the Act wishes to serve, but isn't -- if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.

And Roberts, broadening the objection:

CHIEF JUSTICE ROBERTS: Well, but it's critical how you define the market. If I understand the law, the policies that you're requiring people to purchase involve -- must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment -substance use treatment or pediatric services, and yet that is part of what you require them to purchase (pp 31-32).

And Scalia, following up a couple of minutes later:

Go tell the justices: the ACA has a catastrophic coverage option

Attention, Justices Roberts, Alito, Scalia: your objection to the extent of the individual mandate in the ACA may be based on at a partial misunderstanding. Or at least, on a failure by Solicitor General Donald Verrilli and the four justices supportive of the ACA to highlight an important provision of the law.

In questioning the right of the Federal government to require individuals to buy insurance, the justices glided past the argument that the requirement was justified because the cost of care for the uninsured drives up the cost of health care for everyone -- that we are all in the health care market -- by asserting that not everyone in the market needs the range of services that policies offered in the insurance exchanges are required to cover. This objection was hammered repeatedly, in a variety of ways, by Roberts, Alito and Scalia, and by Michael Carvin arguing for the plaintiffs.  Here's the first such assertion in the transcript:

JUSTICE ALITO: But isn't that really a small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in -- in 2016.

Respondents -- the economists who have supported the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the Act wishes to serve, but isn't -- if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.

And Roberts, broadening the objection:

CHIEF JUSTICE ROBERTS: Well, but it's critical how you define the market. If I understand the law, the policies that you're requiring people to purchase involve -- must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment -substance use treatment or pediatric services, and yet that is part of what you require them to purchase (pp 31-32).

And Scalia, following up a couple of minutes later:

Magna Carta survives by one vote

Like anyone with a modicum of regard for the civil liberties guaranteed by the U.S. Constitution, I'm elated and relieved by the Supreme Court's affirmation in Boumediene v. Bush of the right of habeas for Guantanamo detainees. Our system is working insofar as the Court has three times repudiated the Bush Administration's abrogation of this most basic and ancient of Anglo American civil liberties.

But I am terrified by the 5-4 vote. This country is truly on a knife's edge. One more Supreme Court justice in the mold of Roberts and Alito, and the Court will hand essentially unlimited power to the executive branch, endorsing Dick Cheney's insanely expansive view of the power of a so-called "unitary executive" to do whatever it wants to whomever it pleases.

McCain, of course, has promised that Roberts and Alito will be his models in selecting Supreme Court justices. He has also reversed his past opposition to warrantless wiretapping, suspension of habeas, and exemption for the CIA from military regulations banning torture. Once I thought McCain a bulwark against a Republican field vying to outdo one another in asserting unchecked executive power. No more.

The current election has been a heartening affirmation of democracy. In both parties, the field was wide open and the choices were real. That's doubly true now, because we have one candidate who has promised to roll back the Bush Administration's assaults on civil liberties and one candidate who now promises to continue them. To the present moment, our political system retains democracy's core power -- the power to self correct.

The irony is, we could vote that power away. We could democratically choose to give up the restraints on executive power that guarantee our right to chose. We can choose a president who will appoint judges who in turn allow the President to gut our Constitutional protections. We are one Supreme Court seat away from enabling autocracy.