I started this as an addendum to this post; but things keep piling up, and now the whole thing is turning into a series. First, that intended addendum:
Since I brought up the "hijacking" comments in oral arguments, I just have to add this:
The logic that the conservative justices put forward Wednesday that somehow the challengers’ health plans had been “hijacked” by the government is also divorced from health care reality, [Timothy] Jost [, a health law specialist at the Washington and Lee University School of Law] said.This is why Congress holds hearings and takes evidence and finds out what the laws it is going to pass will do in the real world. And exactly why you don't want judges "legislating from the bench."
“Some of the justices don’t seem to understand how employee benefits works,” Jost said, arguing that government has always imposed requirements on plans, dating back to ERISA in 1974 and state laws before that.
“[The government has] always ‘hijacked’ employee benefit plans for carrying out various public purposes,” Jost said. “Again, I don’t think they really understand how these various things work.”
And then I read this, about voting in Arizona (already a great cockup) and elsewhere, and I thought about the judicial repeal of the Voting Rights Act on the grounds we really don't need it anymore. How's that working out?
It's enough to make a guy regret the Warren Court. For all the good they did, there's always blowback. (Then again, there's always the struggle for control: Congress passed RFRA in the 90's to restore the balance it thought undone by Employment Div. v. Smith. The Court has since obliged with Hobby Lobby (ruling interpreting RFRA) and now Zubik v. Burwell, the birth control case recently argued where the Court showed so much insight into the practical issues affecting ordinary people. As ever, be careful what you ask for; you might get it.)