SCOTUS

The Supreme Court Overturns History

Every 80 years, the Supreme Court has decisively entered a sharply divided political process to provide its own answer to the fundamental question of American politics: what is the scope and purpose of government?  Each time, it has attempted to reinforce the generational and party alignments of a previous era in the face of challenges from the beliefs and partisan preferences of an emerging civic-oriented generation like today’s Millennials (born 1982-2003). But this time, as the eighty year cycle came full circle, the US Supreme Court’s decision to uphold the individual mandate in the 2010 Affordable Care Act (“Obamacare”) under the taxation powers of the Congress surprised everyone.  

As in the past, the generational and partisan composition of this Supreme Court reflects an earlier era. Five of the justices, including a majority of its conservative bloc (Roberts, Thomas, and Alioto) are Boomers (born 1946-1964). The rest are members of the even older Silent Generation (born 1925-1945). A majority are Republicans. Yet in this case,  Chief Justice Roberts   bucked history and his generation’s preference for ideological confrontation in order to preserve the institutional reputation of the Supreme Court. 

Perhaps the Court understood the historical and generational trends any ruling to overturn the Affordable Care Act would have had to fight against. Two-thirds of Millennials wanted the Affordable Care Act either to be expanded (44%) or left as is (23%). By contrast, clear pluralities of Boomers (44%) and Silents (46%) wanted it repealed. Millennials, however, represent the wave of the future. They now comprise one-fourth of all eligible voters; by 2020 more than one out of three adult Americans will be Millennials. And that Millennial-dominated future is now likely to arrive much sooner as a result of the court’s decision. 

Because this large cohort is bringing a new “civic ethos” to American democracy, the Court’s decision is likely to have far reaching effects on the future relationship between government and its citizens. Millennials believe that social rules are important but that everyone should have the freedom to choose how to abide by them. They see government as a parent, setting the boundaries of behavior but not dictating it. Two key elements of the Court’s decision today  reinforce this approach.   One upholds the right of the federal government to tax behavior of which it does not approve (in this instance, not buying health insurance). The second denies Congress the right to dictate to the states what they must do with regard to Medicaid. The Millennial civic ethos will use democratic processes to determine national priorities and rules for permissible behavior by both individuals and states, even as it provides incentives for greater individual and local initiative.  

With the Court’s affirmation of the constitutionality of the Affordable Care Act, the country is likely to see this framework used to resolve many of the other policy challenges the country faces.  June 28, 2012, will be remembered as the day the Millennial Era arrived in the nation’s legal principles as it did in its electoral politics four years ago.  

This blog appeared first in the Huffington Post.

More on Citizens United

Our thinking on the decision got picked up on MSNBC's First Read, and with the always sharp Susan Milligan in the Boston Globe.  Here's my quote in the Globe:

The Republicans have picked themselves off the floor in recent months by running as champions of the middle class,'' Rosenberg said. ``Having big corporate America come in on behalf of a candidate will almost certainly guarantee that a candidate becomes tarred as taking the side of big corporations against the average guy, something this cycle that could be deadly.''

See also Jessie's first of many blogs on the decision, and my original post, The Scotus Campaign Finance Decision - Problematic for the GOP, Big Opportunity for the Dems, which has been gotten a good bit of circulation around the web.

The SCOTUS Campaign Finance Decision - Problematic for the GOP, Big Opportunity for the Dems

Some initial thoughts:

1) A Tragedy.  Just as both parties were beginning to successfully adopt the bottom-up, people-centered, democracy-strenghtening model of politics of the new internet age, the Supreme Court blows the system to pieces.  The decision will no doubt tilt a system that was evolving into a more people based model back towards one where privilege and money will have more sway. 

2) A Lot of Companies Are Not Going to Join In. Yet.  Running ads with their name on it in contested races is not something a lot of companies are going to want to do.  Publically traded companies are by nature risk adverse, and I think given how late in the cycle it is, how controversal the decision was even inside the Court itself, how directly they will be able to be attacked by a candidate or Party for running an ad that you just won't see a ton of these ads this initial cycle.

In fact I would encourage companies to take a position right now that they aren't going to do these kind of ads this cycle to avoid the pressure that is sure to come from both parties and individual candidates.  Just say no.

3) This Could Become A Big Problem for Republicans.  The Republicans have picked themselves off the floor in recent months by running as champions of the middle class.  Having big corporate America come in on behalf of a candidate will almost certainly guarentee that a candidate becomes tarred as taking the side of big corporations against the average guy, something this cycle that could be deadly.  The GOP better think twice about their newly populist brand before celebrating this decision too much.

4) The Democrats Should Try to Pass A Bill Tilting the System Back Towards People.  There are a lot of ways to do this but the Democrats should stand on principle here and demonstrate they want the system to be biased towards broad, people-based participation not towards aggregrated privilege, power and wealth.  Will fit nicely into their emerging people-based economic message.

Debated all this with Republican strategist Chip Saltsman today on Fox News.  Thought his arguments were ridiculous.  Will have the video up soon.

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