David R. Henderson  

Blinder on Health Care

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Alan Blinder, in today's Wall Street Journal, has an interesting piece attacking Supreme Court judges who would actually seriously consider finding the recent health care law unconstitutional. It's titled, "Life Liberty, and the Pursuit of Insurance." There are so many interesting parts of this piece that I'll quote them and respond in turn to each.

Beyond the economics, our country was founded on the idea that the rights to life, liberty and the pursuit of happiness are inalienable. Access to affordable health care is surely essential to two of these three rights, maybe to all three.

Wow! I think he and I (and the founding fathers with me) have a very different view of what the right to life, liberty, and pursuit of happiness mean. Alan [he and I have always been on friendly terms and so I feel justified in using his first name] seems to think that it means that the government can use force to provide affordable health care. The founding fathers and I take these terms to mean that the government can't use force. That would violate our liberty and our pursuit of happiness. Alan Blinder is a good economist. He understands that there is no free lunch. So when government provides subsidized health care, others are forced to pay for it. So by the founding fathers' and my meanings, this law violate our rights.

In the very next sentence, though, Alan writes:

Rights are nice, but someone has to pay the bills.

The "but" suggests that he doesn't really have a rights justification for the law and that he knows it. I think this is his way of saying that he doesn't really care about rights. So maybe he and I do mean the same thing by "rights" because he couldn't hold on to his meaning for more than a sentence.
The U.S. health-care payment system has a few oddities we'd be better off without. For one, the tax code incents employers to pay part of workers' wages in the form of health insurance, which is why insurance became tied to employment in the first place. For another, we have somehow decided that the state should provide anyone age 65 or older with health insurance, while everyone younger should fend for themselves. I'd hate to have to explain either of those choices to the proverbial man from Mars.

All good points. So let's end that tax treatment in a revenue-neutral way. And it is unfair to tax the young to pay for the old, especially when the old are, on average, wealthier than those in their twenties and thirties. If that's a bad idea, and we can't explain it to someone from Mars, what should we do? Hmmm. I'm thinking here. It's tough, it's tough. Maybe if I think harder I can figure it out.

He then writes:

Now the big question: Does anyone think it is sensible to have nine lawyers decide what sort of health-care payment system the nation should have? Yet that's what may happen when the Supreme Court hands down its ruling.

Good question, Alan. It's not sensible at all. No lawyer and, in fact, no non-lawyer, should be able to decide what sort of health-care payment system the nation should have. Why does his question work well rhetorically? Because it gets us thinking about who should be able to make our decisions. I have a suggestion: we should. But that's not where he goes. He waits until the end of the article to say who should make the decision, writing:
If we are going to have political decision-making, at least elected politicians should do the deciding.

That's an interesting formulation. Notice the conditional. IF we are going to have political decision-making, let's have elected politicians do it. Not exactly a ringing endorsement of political decision-making. Maybe there's hope.

Back to the earlier part of his article. He asks, "Why does the law require people to purchase health insurance?" and here's the first part of his answer:

Like most forms of insurance, health insurance is plagued by potential adverse selection. Pick any price, and riskier customers--the people more likely to file claims--will find the insurance policy more attractive than less-risky customers. So in health insurance, in particular, insurance companies expend huge resources trying to screen the bad risks out and the good risks in. One obvious way is to exclude people with pre-existing conditions, but there are others. All this effort adds to national health expenditures, improves insurers' profits, and hurts the bad risks (e.g. sick people).

Notice his careful use of the word "potential" rather than "actual" before the term "adverse selection." He lays out how insurers reduce adverse selection by spending resources. Are the expenditures huge? I'm not sure. Alan writes that one obvious way is to exclude people with pre-existing conditions, but he misses--and this is a strange omission for an economist--another obvious way: price higher to higher risks, just as every insurance company does with every kind of insurance whenever they are allowed to. It does hurt the bad risks--he's right there--just as every insurance premium based on risk does. It's not clear, though, that it improves insurers' profits. There is, after all, competition among insurers that tends to compete away abnormally high profits. Of course, there would be more competition if the people were allowed to buy insurance across state lines. But he doesn't go there.

He continues:

The essential bargain made in 2010 starts by using the individual mandate to create a huge pool consisting of (almost) all Americans under age 65--just as Medicare now does for the 65-and-over population. With that pool created, the law can then require private insurers to cover (almost) everyone, including those with pre-existing conditions. In return, insurers get a lot more customers and a lot less adverse selection. They also save a ton of money on screening.

The Supreme Court's ruling could unravel this bargain. If the justices void the individual mandate, the adverse selection problem comes roaring back. Then, if the other insurance reforms remain in place, it will be the insurance companies that get sick. They will have to take on the bad risks while some of the good risks opt out, as they do now.


But with the penalty for not complying with the mandate being so low these problems he talks about will come roaring anyway. Moreover, insurance companies, unable to price according to risk, will try to make their insurance unattractive for high-risk people. That could get ugly. As health economist John Goodman has asked, "Would you want to eat in a restaurant that didn't want you as a customer?"

Finally, Alan can't resist. He writes:

I have a simple model of Supreme Court decision making which rarely errs. In cases in which there are clear Democratic and Republican positions on an issue--which certainly includes this case--the Court will vote 5-to-4 Republican. Think Bush v. Gore or Citizens United, for example.

Not quite. In one part of Bush v. Gore, the decision was 5-4. In the other part, though, it was 7-2.

And Citizens United? Really, Alan? Let's see. Organizations that wanted the Supreme Court to decide as it did included that group of rabid Republicans known as the American Civil Liberties Union and that group of labor unions called the AFL-CIO.


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COMMENTS (28 to date)
Jack writes:

A shame for such a smart and usually sensible economist to write utterly partisan drivel (if the Court were 5-4 Democrat, would he have written the same piece?). Whatever one's policy views, respect for separation of powers should be an axiom of intelligent debate. Otherwise, anything goes -- mob-ocracy, anyone?

http://en.wikipedia.org/wiki/Tyranny_of_the_majority

Craig Richardson writes:

Good analysis, but health insurance is different than car insurance on the matter of risk. If I drive drunk, I pay higher rates, and deservedly so for being a higher risk. Same thing for older drivers and younger ones.. but we will still get insurance.

I'm against the mandate, but we need to figure out a better way to address how we handle health events that happen to people through no fault of their own.

Example: a person wakes up one day with a pain in his head, and finds out he has brain cancer. Here's how this goes: He will lose his job, his health insurance and will also be uninsurable in the individual market, leading to a downward spiral of sale of assets,and a pretty bad end. I've seen it happen firsthand to a friend.

The stress of the cancer is compounded by the stress of unpaid hospital bills left to the family. We can do better, especially since we spend nearly twice as much on health care as other OECD nations.

Cochrane's ideas are a step in the right direction on this front.

The rap on libertarians is that they don't have empathy, and in this arena we need to be FOR something that solves this problem rather that just saying, "it's economically more efficient" that people who are terminally ill don't get health care.

The market will not provide care for the unemployed individual with brain cancer at any price. And hospitals are doing their best to avoid paying it: we have 26% fewer emergency rooms than a decade ago. I do agree that employer-based insurance is one of the first things that should go.

mark writes:

He fundamentally does not understand the political thought behind those words "life, liberty and the pursuit of happiness". The idea was that the people already had those rights., pre-government Government need do nothing, yet the people have them. Once you understand that, you cannot argue that a government action is necessary for those rights, or that any other right can be equated with them. You can certainly make the argument that government action can make life better, but that has nothing to do with those words.

mark writes:

changing the level of generality is one common tactic in rhetoric. His efforts to generalize this issue into being one of "only elected officials should make political decisions" fall into that category. The problem with that tactic is the resulting generalizations easily become over-neralizations. So here his argument implies that any law that emanates from the first two branches of government winds up being off limits to the third. One can imagine all kinds of egregious laws that Mr Blinder might like judicial scrutiny of. All the laws imposing segregation for instance were certainly passed by elected officials. And political at their core.

Methinks writes:

Access to affordable health care is surely essential to two of these three rights, maybe to all three.

That's just weird because at the time those words were first written, nobody on the planet had access to the modern health care that Blinder insists is essential to all three now.

It's not possible to make the claim that this is what the founders meant and it's not possible to make the claim that it is essential for human survival because humans have survived without it for the overwhelming majority of human history.

Rights are nice, but someone has to pay the bills.

After he says that he goes on to say that it should be elected officials, not the courts to decide who pays. Except the courts are ruling (and are meant to rule) on the elected official's ability to make such decisions as they are constrained by that bothersome constitution. It's that checks and balances thing we were all taught in civics class in high school. Well, the SCOTUS is a check Blinder shouldn't be blind to.

But, you know, regardless of the machinations of the politicians, they never end up deciding the "who pays" question. Never. Politicians just decide whom to attempt to extort. In every country where there is socialized medicine (and I'm from one) - where politicians are the arbiters of need and ability - it is always those who need medical care who end up paying. Just like before the politicians meddled. They either pay out of pocket or they pay by waiting (and often worsening their condition until they are irreversible) on wait lists or they pay by receiving substandard care.

David R. Henderson writes:

@Craig Richardson,
All your points are well-put and well-taken.
At the same time, it’s important not to let Blinder and others get away with thinking that they’ve solved the problem. (I’m not saying you’re doing that; I’m just emphasizing Blinder's non-solution.) Thus the relevance of this part of my post above:
Moreover, insurance companies, unable to price according to risk, will try to make their insurance unattractive for high-risk people. That could get ugly. As health economist John Goodman has asked, "Would you want to eat in a restaurant that didn't want you as a customer?"

Mercer writes:

You are not addressing this point of Blinder's piece:

" Americans spend a much larger share of our GDP than any other nation on health care, we are not healthier. We are also the only rich country that fails to insure all its citizens."

If we spend more and get less then other countries I see nothing wrong with making our system more like the other advanced countries.

"So by the founding fathers' and my meanings, this law violate our rights."

I don't see how Obamacare is a gross violation and Medicare is not. You hint of getting rid of Medicare but no politician takes this position and you know it will not happen. All the GOP politicians saying Obamacare is socialism and should be repealed defend Medicare and see no problem with taxing young people to pay seniors medical bills.

Bob Murphy writes:

David,

Good post. Is Blinder right, though, that it was the tax code that made employers offer health care in the first place? I thought it was the wage controls of WWII.

David R. Henderson writes:

@Bob Murphy,
Good post. Is Blinder right, though, that it was the tax code that made employers offer health care in the first place? I thought it was the wage controls of WWII.
Thanks. No, he’s wrong and you’re right. It’s just that criticizing him for that would have been relatively picky. He and I believe that, If not for the tax treatment of employer-provided health insurance, the tie between employment and health insurance would not have lasted.

wintercow20 writes:

@ Bob M. and David, well yes the price controls seem to have led to the offering of health insurance, but I think it took until the Eisenhower Administration to institutionalize this by offering the special tax treatment. IIRC the tax favorability was not originally permitted (not sure, but that is what I remember reading some time ago).

Insight writes:

"I don't see how Obamacare is a gross violation and Medicare is not"

The Supreme Court case is largely about the legality of a major difference in how medicare and ACA is implemented (specifically the individual mandate). Without commenting on the economic or policy merits of doing so, extending medicare down to age 0 would not be unconstitutional even if ACA turns out to be.

Chris Koresko writes:

Blinder: Beyond the economics, our country was founded on the idea that the rights to life, liberty and the pursuit of happiness are inalienable. Access to affordable health care is surely essential to two of these three rights, maybe to all three.

Blinder is relying here on one of the intellectual pillars of Progressivism: the idea that having a right is meaningless unless one has the resources to exercise it. And therefore the lack of those resources implies a positive right to be supplied with them by society.

When he says, "Rights are nice, but someone has to pay the bills" he's not saying that he doesn't think rights are important. Rather, he's saying that rights are meaningless if those who lack the resources to exercise them are not supplied by society (i.e., by government) with those resources. So he's not being inconsistent.

Of course this line of thinking rests on a basic misconception of inalienable rights (or at least a conception fundamentally different than the Founders had). To the Founders, all rights flow from the Creator and are intimately related to the nature of Man. That nature is equal in the sense that all men are equally men (as opposed to animals, angels, etc.) This is what is meant by 'all men are created equal', The implication is that no man has a natural (intrinsic) right to rule over another or to demand anything from him beyond respecting his own rights. As Jefferson put it (paraphrasing), no man is born with a saddle on his back, or wearing boots and spurs. A man's right to life means that no one may kill him; his right to liberty means no one may enslave him; his right to pursue his happiness means no one may prevent him from doing what he pleases with himself and his property. The only limits on these rights come from their intersection with the equivalent rights of others.

In the Founders' conception, it's absurd to suggest that someone has a right to be provided with "stuff", either material goods or services. Such a right, if it existed, would be in conflict with the inalienable rights. If I have a right to food, by implication I am entitled to take it from someone else.

Chris Koresko writes:

Craig Richardson: Example: a person wakes up one day with a pain in his head, and finds out he has brain cancer. Here's how this goes: He will lose his job, his health insurance and will also be uninsurable in the individual market, leading to a downward spiral of sale of assets,and a pretty bad end. I've seen it happen firsthand to a friend.

First, let me express my sympathy for your friend. It sounds like a worst nightmare come true.

Second, I suggest that the right way to handle this kind of thing is to buy major medical insurance independent from your employer. So it's not tied to your job. You lose the tax advantage, but the cost of such policies tends to be low: I had one when I was a grad student making $13K/year, and the limit was $1M if I recall correctly.

The fact that most people (including me, now) don't do this is probably due in significant part to the tax advantage given to employer-provided medical insurance. And I'm under the impression that ObamaCare will effectively ban it.

Chris Koresko writes:

Blinder: If we are going to have political decision-making, at least elected politicians should do the deciding.

Interestingly, this seems to be the position of the conservative justices, as best I can tell. It was the liberal justices who, when it became clear that the Individual Mandate was in trouble, started to advocate that the Court shouldn't throw out the whole law but try to salvage parts of it. But the conservatives argued that doing so would put the Court in the position of defining health care policy, and that if the Mandate were rejected it was more appropriate to reject the whole law and let Congress fix it.

Tony Licari writes:

Good point re: Bush v. Gore. On the equal protection argument, it was 7-2 against Gore. Scalia always brings this up when people try to punk him about the case.

Seth writes:

Craig Richardson writes:

a person wakes up one day with a pain in his head, and finds out he has brain cancer. Here's how this goes: He will lose his job, his health insurance and will also be uninsurable in the individual market, leading to a downward spiral of sale of assets,and a pretty bad end. I've seen it happen firsthand to a friend.

If health insurance were not tied to his employer, then he would not lose his health insurance when he lost his job. He likely would have been with the same health insurance company for a long time, just like I've had the same auto insurer.

If states didn't mandate what health insurance must cover, he'd likely have a health insurance policy that looked more like insurance instead of a medical subscription plan. And that would likely be a more affordable plan, so more people would have one.

For the basic routine stuff, he'd pay out-of-pocket, just like he does when he gets his car fixed. And, since first parties are paying for it, even that stuff would be much more affordable.

I'm not sure I've heard libertarians support these types of changes because they are 'more economically efficient'. I've heard them support them because they actually address problems at the root and makes everybody -- including people like your friend -- better off.

Matt C writes:

> The rap on libertarians is that they don't have empathy, and in this arena we need to be FOR something that solves this problem rather that just saying, "it's economically more efficient" that people who are terminally ill don't get health care.

The U.S. government spends a huge amount of money on medical care already. At least fairly recently the U.S. government spent more per capita on health care than the Canadian goverment did. From Wikipedia:

In 2004, government funding of health care in Canada was equivalent to [US$] 1,893 per person. In the U.S. government spending per person was US$ 2,728.[26]

We should be able to scrap our existing health care programs, build a system just like theirs, and have money left over. Right?

We spend so much money on health care, both privately and publicly, that there's lots of scope for talking about reform without increasing expenditures or subsidies, or mandating increased demand for health insurance.

(Yes, I know, U.S. and Canada (or wherever) are not exactly the same kind of population. Pretty close though.)

I realize that "we could already pay for a system like X if we were willing to scrap Medicare" probably won't sell very well with most people (or politicians). But it is at least one way of looking at the issue that shows an openness to change without forgetting about costs.

Pandaemoni writes:

Personal pet peeve: I always hate it when people assert that they know what "the founding fathers" believed (and, it seems invariably, those that invoke the founders find that the founders agree with their personal opinion...what are the odds?).

The founding fathers were a fairly large collection of many people with diverse views on many issues. From the standpoint of the constitution (actually at issue in the case) the founders include not just the members of the constitutional convention, but state ratifying committees. For the Declaration, one can fairly look to the members of the continental congress in Philadelphia in 1776. But a "committee" does not have one unified intent or understanding of things and cannot be said to speak with a single (simplistic) voice. It may be that Jefferson, say, would agree with one position, while Robert Morris would hold an opinion that was similar but had notable differences (or in some cases, a diametrically opposed position...like when he voted AGAINST the Declaration of Independence), yet they are both "founding fathers."

Jeff writes:

Liberal economists are liberals first and economists second. Does this surprise anyone?

David R. Henderson writes:

@Pandaemoni,
Point taken. There was that diversity of opinion you talk about. I’m willing to bet dollars to doughnuts, though, that under 10% of them thought that the government should provide them the means to buy health insurance or even health care.
And, by the way, I don’t invoke them only when they agree with me. When I give talks in which I refer to them, I always point out the huge stain on their record: their support of slavery.
@Seth,
Yes. Well put. I’m betting Craig Richardson would favor what you and I favor, given that he said good things about John Cochrane’s thoughts on this.
@Chris Koresko,
When he says, "Rights are nice, but someone has to pay the bills" he's not saying that he doesn't think rights are important. Rather, he's saying that rights are meaningless if those who lack the resources to exercise them are not supplied by society (i.e., by government) with those resources. So he's not being inconsistent.
I hadn’t thought of that. That could be it.

Yancey Ward writes:

It would be interesting to find the Supreme Court cases in which Blinder supported tossing out a law passed by Congress or a state legislature, or by popular initiative. Perhaps he would be willing to supply those answers himself if he is reading your post, David, or answer questions on this matter. Does he believe in judicial review in any way, or is it really as selective as it appears at first glance?

Seth writes:

@David - Thanks. I agree. It seems he would. I think the 'rap on libertarians' he describes is a straw man (perhaps not his) and should be disassembled each time it's presented. I don't believe advocating something you believe would work better for everyone lacks empathy.

Mercer writes:
"If we spend more and get less then other countries I see nothing wrong with making our system more like the other advanced countries."

@Mercer - I believe there would be much dispute in the "get less" part of that statement. Most folks reference things like life expectancy and infant mortality to support this, though not recognizing that factors other than medical care influence these numbers.

However, using more specific medical care quality measures -- like effectiveness of diagnosis and treatments, wait times and choice -- it's hard to make the case that health systems in these other advanced countries are better.

Chris Koresko writes:

David Henderson: And, by the way, I don’t invoke (the Founders) only when they agree with me. When I give talks in which I refer to them, I always point out the huge stain on their record: their support of slavery.

I'm not sure I agree that the Founders could be said to support slavery. Here's what Madison had to say about the Contstitution's treatment of slavery in Federalist 42:

It were doubtless to be wished, that the power of prohibiting the importation of slaves
had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren!

In other words, Madison acknowledged that slavery was a moral stain on the nation and that it needed to be ended. And he fully anticipated that it would be.

N.B. The "considerable discouragement from the federal government" that Madison speaks of was a heavy tax.

It's worth noting here that the Republican plan to end slavery relied on preventing the spread of it into the new States (Kansas, et al.). This was expected to put slavery on a path to extinction (to paraphrase Lincoln) by making the slave states an increasingly isolated minority in the growing Union. The Republicans went further than Madison by advocating banning the practice of slavery rather than just the importation of new slaves. This approach was completely consistent with Madison's view, and it probably would have worked if the Civil War hadn't brought matters to a head.

Daniel J. Artz writes:

Whenever I read an op-ed piece trying to defend PPACA (a/k/a "Obamacare") on economic grounds, I note that the author invariably leaves untouched the primary effect and presumptive purpose of the Individual Mandate - a massive wealth transfer from the young and healthy to older, heavier users of health care. The IM is not simply about expanding the risk pool. That would not have brought down health insurance rates at all. The trick was, by combining the IM with the community rating provisions of Obamacare, which restricted the maximum ratio of health insurance costs between the highest risk population (i.e., the 55-64 age group) to the lowest risk group (i.e., the young and healthy, those least likely to need or purchase insurance) to 3:1, the young and healthy would vastly overpay for insurance, with premiums averaging almost $5000 per year for actuarially expected benefits of only $564 pr year, thus subsidizing significantly lower premiums for higher risk consumers. If the young and healthy understood this (and why would they, since Obama and the Democratic leaders will never tell them), no one under 35 would vote to reelect Obama.

Daniel J. Artz writes:

Whenever I read an op-ed piece trying to defend PPACA (a/k/a "Obamacare") on economic grounds, I note that the author invariably leaves untouched the primary effect and presumptive purpose of the Individual Mandate - a massive wealth transfer from the young and healthy to older, heavier users of health care. The IM is not simply about expanding the risk pool. That would not have brought down health insurance rates at all. The trick was, by combining the IM with the community rating provisions of Obamacare, which restricted the maximum ratio of health insurance costs between the highest risk population (i.e., the 55-64 age group) to the lowest risk group (i.e., the young and healthy, those least likely to need or purchase insurance) to 3:1, the young and healthy would vastly overpay for insurance, with premiums averaging almost $5000 per year for actuarially expected benefits of only $564 pr year, thus subsidizing significantly lower premiums for higher risk consumers. If the young and healthy understood this (and why would they, since Obama and the Democratic leaders will never tell them), no one under 35 would vote to reelect Obama.

Brandon Berg writes:

And it is unfair to tax the young to pay for the old, especially when the old are, on average, wealthier than those in their twenties and thirties.

This isn't really true in any meaningful sense. The elderly may be wealthier in the sense that they have more financial assets, but the NPV of their future earning stream is lower. After accounting for future earning streams, the young are actually wealthier, if we assume a growing economy and rising real wages. Each generation is better off than the one before.

Redistributing from the young to the old is something that's done privately on a purely voluntary basis all the time---when a young person saves money, he's redistributing wealth to his older future self. Now, there are some ethical issues involved when we go from intertemporal transfers to interpersonal transfers, but there's nothing inherently wrong with transfers from young to old.

Craig Richardson writes:

@Chris, David and Seth: Yes I do believe libertarians have empathy, especially if they've read Theory of Moral Sentiments :). Thanks for your comments. I am of the same persuasion.

But I have heard arguments from libertarians along the lines of: "Well you shouldn't be able to purchase auto insurance the day after you drive drunk and hit a tree, so it's the same with health insurance." Also: "Well people shouldn't be allowed into emergency rooms if they don't have insurance or money- that's their fault if they die."

What I do think is important is that the liberal case for health is emotional- and comes from deep anguish/sympathy over seeing a loved one's health decline... so to influence the debate, logic must be paired with sympathy about people in this plight. What I often see is the criticism of the health reform hit head on, but the solution is the trailing end, or never offered up. As if our health care is the model of the world and can't be improved upon.

My solution would be this:

1. Catastrophic bare-bones coverage for everyone who contracts a major unanticipated disease, covered by government (what we now call high risk pools).

2. All other insurance de-linked from the employer, getting rid of tax exemption. (or more politically palatable, you get the tax exemption as a single individual but not my ideal.)

3. Insurance companies would be legally allowed to charge different rates based on body mass index (a'la life insurance companies and smoking) to get costs of insurance down. Let them charge for what we can control.

4. Inter-state competition allowed.

5. Transparency with hospitals- any hospital receiving government funding must release information on their success/failure rates in treatment.

This in my view is the most market friendly solution. Catastrophic coverage would end "job lock" particularly if one member of the family had a pre-existing condition and there was fear of losing coverage if the family moved somewhere else. People would be better able to move to where the jobs are.

Higher prices for more obese consumers would kick back responsibility for diet and exercise to the consumer.


Cryptomys writes:

Yes, the Republicans would have you believe that Bush v. Gore was 7-2 on the equal protection question. Those with legal knowledge know it's quite a bit more complicated than that.

There is such a thing as an opinion labeled "concurring in part, and dissenting in part." There were no such opinions in Bush v. Gore. There were four pure dissents.

Per curiam decisions are almost always unanimous. Not in Bush v. Gore, but most Republicans and Republican apologists never read beyond the language of the unsigned per curiam opinions, and cannot even name the two Justices who were supposedly on their side on the equal protection claim. These Justices were Breyer and Souter. But if you read their dissenting opinions, it is clear that neither Breyer nor Souter even thought the SCOTUS should be hearing the case. The four liberal Justices also voted against issuing the injunction that stopped the Florida vote count pending review. So, the fundamental division on the court was clearly 5-4.

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