Supreme Court vote on the ACA

Based on various things I’ve read recently, I predicted to my class last week that the Supreme Court would have 6 or 7 votes to uphold the Affordable Care Act.  A couple political science scholars of judicial politics perform a nice thorough analysis to come to this conclusion:

We (and many others) think there is more to justices’ behavior than policy preferences.  Justices have famously bucked their presumed policy preferences on high-profile cases—such as when Rehnquist supported Miranda rights in Dickerson v. United States based on support for precedent and Scalia supported flag-burners (whom he openly admitted he’d like to see in jail) in Texas v. Johnson based on support for First Amendment speech rights. We show in our book that virtually every justice deviates from their policy preferences in favor of one or more of several prominent legal values such as respect for precedent, although the justices differ in how much they value precedent…

Kennedy’s predicted behavior shifts dramatically, going from a certain vote to overturn the PPACA in the ideology-only model to only a 46% likelihood of voting to overturn when we factor in precedent.  Roberts and Alito also shift, although not so markedly.  In the second graph, the probability of overturning the law is therefore much lower (30%).

As always, predictions are hard, especially about the future (see Berra v. Bohr) and especially when it isn’t clear which precedents apply or which legal doctrines are likely to dominate. Thus, any specific prediction must go beyond the model.

That said, here is ours: 6-3 or 7-2 to uphold the law.

Respect for precedent pushes Kennedy to support the law and Roberts comes along for the ride in order to keep the opinion out of Kennedy’s hands (and possibly writing an opinion that cabins the Commerce Clause more than it is now).  Alito probably goes with Roberts, but seems more up for grabs.  If we are wrong, expect the justices to either downplay precedent and emphasize other legal values (such as federalism) or play up the few precedents that protect state rights.

Policy motivations won’t be irrelevant, but score this one for law.

You heard it here first.  Unless you already heard it somewhere else.

Lying vs. misleading

Mitt Romney’s new ad is honestly one of the most dishonest political ads I’ve ever seen.  Seriously.  I get that political ads stretch the truth– really stretch– but this is just completely ridiculous.  The New Yorker’s Ryan Lizza takes a look:

The ad, now running in New Hampshire, includes video of Barack Obama making an amazing statement: “If we keep talking about the economy, we’re going to lose.” Zing! It’s a nice gotcha quote for Romney. One could hardly believe Obama would ever say it. And, in fact, Obama did not say that. He quoted a John McCain adviser saying it in 2008. Here’s the full quote: “Senator McCain’s campaign actually said, and I quote, ‘If we keep talking about the economy, we’re going to lose.’ ” Big difference, huh?

This is one of those cases where a candidate has put out something that is demonstrably false. If a journalist or writer quoted someone in such an intellectually dishonest way, you would never trust the person’s writing again.

Exactly.  Lizza continues on to discuss the absurdist nature of the coverage (by Politico, natch):

Here’s one example, from a very fine reporter at Politico whom I do not mean to pick on:

JUJITSU—USING OBAMA’S WORDS AGAINST HIM: The buzziest part of the ad is a clip from Obama’s 2008 speech when he faulted a John McCain advisor for telling a reporter on background that “if we keep talking about the economy, we’re going to lose.” The McCain context is NOT included in the ad itself.The president’s campaign spokesman says this makes it “a deceitful and dishonest attack” meant to distract from Romney’s own record in Massachusetts. Think Progress calls it “too cute by half.” The Democratic National Committee says “it continues a pattern of dishonesty and a lack of credibility on issues that matter to the American people.

In Romney’s eyes, though, the president is now doing exactly what he attacked McCain for doing four years ago…

Ummm, he deserves picking on.  This is just the classic journalistic trope of turning what she be an obvious “Romney is lying” into a “Democrats say Romney is lying.”

The good folks at Think Progress have come up with a brilliant response of Romney “accurate, according to Romney standards of accuracy.”  It’s a must watch: