Garrett Epps is a journalist and legal scholar who teaches Constitutional law. He has some interesting thoughts about how the health care act will do now that it's in the clutches of a self-centered and asocial Supreme Court.
... I'm sure most of the justices are mystified by the criticism -- most cogently written by Dahlia Lithwick and Lisa T. McElroy -- of its still unexplained three-and-a-half-hour radio silence on the evening of Troy Davis's execution. In the Court's hermetically sealed world, the actual people affected by its decisions aren't just unimportant, they are basically nonexistent. Less than four hours is practically neutrino speed in Court terms.
I wouldn't be surprised if the health care challenge looks different to the justices than to outsiders as well. Media figures and barroom authorities alike view it through the lens of the 2012 election. Rejection of the "individual mandate," they reason, would be a sharp, and perhaps fatal, blow to the shaky prospects of a second Obama term. Since five of the nine clearly despise Obama, the assumption runs, these five will rush to deliver the coup de grace.
But to justices, presidents come and go; the Court remains, and so does the law it makes. The smartest justices -- such as Chief Justice Roberts -- often think two or three cases ahead, to what direction they want the law to take over decades. It may be less clear to them that stomping Obama on this issue is the wiser course. ...
If I could be fly on the wall during the discussions of this case, the justice I'd most like to hear from is Elena Kagan. She isn't as far away from "actual people" as other justices. She is, in that and in other ways, more like John Roberts -- her opposite politically -- than like any other of her colleagues. That's according to Robert Barnes who wrote about her the other day in a WaPopiece marking her first year on the Court.
... In the campaign finance dissent, she said her colleagues on the other side thought that they had found a smoking gun. “But the only smoke here is the majority’s, and it is the kind that goes with mirrors,” Kagan wrote.
When her interviewer at Aspen read that line, the audience laughed and applauded. Kagan said: “You know, listening to that, I’m not sure I would have written it that way again.”
The majority view in that case was written by Roberts. And when Kagan chose to summarize her dissent from the bench — a rare move even rarer for a rookie — their point-by-point arguments resembled the opening round between two people identified early in their careers for their potential.
Roberts and Kagan are something of a pair: ideological opposites who possess similar Ivy League educations and intellects; potential coalition builders on a splintered court and writers who seem to strive to explain their jurisprudence to those beyond the walls of the Supreme Court. ...
Put that together with her reputation for being rational and persuasive. In an interview at the Aspen Institute a little while back, Kagan had this to say about having been Solicitor General first, before joining the Court.
“You’re not deciding the cases but you’re focused all the time on the Supreme Court,” she said at the Aspen Institute gathering. “Your job is to try to figure out how to persuade nine Supreme Court justices to take a particular position. And now my job is to figure out how to persuade eight.”
Reading others' descriptions of Kagan, I get the feeling that if anyone can persuade 'em, she can.