Roberts vs Obama: Affordable Health Care Act goes to SCOTUS

JUSTICE BREYER: All right. So if that is
your difference -- if that is your difference, I'm
somewhat uncertain about your answers to -- for example,
Justice Kennedy asked, can you, under the Commerce
Clause, Congress create commerce where previously none
existed. Well, yeah, I thought the answer to that
was, since McCulloch versus Maryland, when the Court
said Congress could create the Bank of the United States
which did not previously exist, which job was to create
commerce that did not previously exist, since that time
the answer has been, yes. I would have thought that
your answer -- can the government, in fact, require you
to buy cell phones or buy burials that, if we propose
comparable situations, if we have, for example, a
uniform United States system of paying for every burial
such as Medicare Burial, Medicaid Burial, CHIP Burial,
ERISA Burial and Emergency Burial beside the side of the
road, and Congress wanted to rationalize that system,
wouldn't the answer be, yes, of course, they could.

like, you'll just be buried/cremated/thrown in a ditch in the cheapest manner possible

xp

yeah for one thing if you postpone burial service preparations, the cost of your eventual burial will go DOWN not up.

but there'll be an awful stink in the room

None of this is going to hinge on any of the arguments made in the court so all the hand-wringing about how shitty the SG's performance is are just lame. Jeff Toobin should know better frankly.

re verilli's first bungled response posted slightly upthread: there's no pressing need for legislation to deal with the cost of funeral insurance and the consequences of non-insurance on the millions of americans who can't afford it. so the question is irrelevant. there IS, however, a pressing need for such legislation when it comes to health insurance, and the legislation is constitutionally justified by significant precedent relating to interpretation of the commerce clause. that's the damn answer.

yeah, okay, fair point alex

anyway, from what I understand, the court would have to do a lot more work to strike down this bill than to uphold it.. so here's for institutional inertia

v excitable on intrade

http://i.minus.com/ibyLaLmfaqtZNM.png

the commerce clause is just, like, so awesome.

re the Roberts legacy speculation:

I think based on his insular private school education when he was younger and being a top student at Harvard both undergrad and law school, plus more importantly than that, his rulings so far, Roberts is more invested in arrogantly knowing that he's correct, and he thinks that his legacy will eventually reflect that, even if the liberal media and some protestors don't like his decisions. While he is more concerned about appearances than Thomas or Scalia, he seems to largely reach the same bottom line decision

the fact that the supreme court isnt broadcast on tv is one of the biggest bummers, h8 the supreme court what assholes

this is a good piece btw http://www.slate.com/articles/news_and_politics/jurisprudence/2012/03/the_supreme_court_is_more_concerned_with_the_politics_of_the_health_care_debate_than_the_law_.single.html

The Court has always been concerned with the politics of the decisions that directly affect the vast majority of citizens. This case is no different.

How is Lithwick not a staff writer at the New Yorker?

wtf with burial question, part of the reason there is interstate commerce occuring is because the other side of the transaction is already federally regulated- and that very regulation creates the free-rider problem wrt to emergency services for those who are not covered. is there a similar situaton with burial?
xpost

SCOTUSBLOG tweeted earlier:

Paul Clement gave the best argument I've ever heard. No real hard questions from the right. Mandate is in trouble.

lithwick otm

I always have liked most of what Lithwick has written, but I do not think she makes a strong argument for this statement:

Because, as it happens, the current court is almost fanatically worried about its legitimacy and declining public confidence in the institution.

Roberts gives a superficial amount of attention to these issues but the hearings are still not televised, there is no ethics code for Supreme Court justices and Citizens United and other cases show a lack of interest in stare decisis.

JUSTICE BREYER: All right. So if that is
your difference -- if that is your difference, I'm
somewhat uncertain about your answers to -- for example,
Justice Kennedy asked, can you, under the Commerce
Clause, Congress create commerce where previously none
existed. Well, yeah, I thought the answer to that
was, since McCulloch versus Maryland, when the Court
said Congress could create the Bank of the United States
which did not previously exist, which job was to create
commerce that did not previously exist, since that time
the answer has been, yes. I would have thought that
your answer -- can the government, in fact, require you
to buy cell phones or buy burials that, if we propose
comparable situations, if we have, for example, a
uniform United States system of paying for every burial
such as Medicare Burial, Medicaid Burial, CHIP Burial,
ERISA Burial and Emergency Burial beside the side of the
road, and Congress wanted to rationalize that system,
wouldn't the answer be, yes, of course, they could.

^^^

declining public confidence in the institution current sitting justices

We must assume that these statements flying around for weeks about Roberts' "obsession with prestige" come from Bloody Mary Sundays at Cokie's. I have literally read nothing in the last few months adducing the degree to which this decision affects the court's "institutional prestige."

Lithwick seems to have bought Roberts spin on it (rather than Cokie not related Roberts spin on Justice Roberts):

Roberts even nodded at that court-wide anxiety by devoting most of his 2011 State of the Judiciary report to issues of recusal and judicial integrity, and by reversing his own policy on same-day audio release, in order to allow the American public to listen in on the health care cases next week (albeit on a two-hour delay).

This is mostly just lipservice though since Robert did not suggest an openness to changing recusal practices or allowing tv. And it's a big jump to go from this stuff, to Robert is gonna support a mandate on health insurance

Lithwick also blames the Obama White House for not defending health care after it was passed, as playing a role in getting this issue to the Supreme Court. But if Obama had used his bully pulpit more and Dems stood up that summer when tea partiers were first carrying on about death panels, wouldn't this just be more like abortion--2 set views, neither of which will change. Opponents of health care would have challenged this no matter what imho.

The thing is, yes, every SCOTUS decision is going to be to some degree based on politics, but this one is particularly ripe for political-based rulings because there's so little help one way or the other in the actual text of the Constitution, or, really, in past decisions. And that's why I say it DOES come down to a semantic argument, albeit one fueled by politics.

What I mean is that if Congress passes a law that is absolutely loathed by conservatives but is CLEARLY within congressional power in the Constitution, even the most conservative justice will have a much harder time striking it down.

It's possible her take on Roberts has been distilled from his general demeanor in interviews and public appearances. As opposed to Scalia or Thomas, who are basically unabashed assholes, Roberts at least humors decorum.

if Congress passes a law that is absolutely loathed by conservatives but is CLEARLY within congressional power in the Constitution, even the most conservative justice will have a much harder time striking it down.

idk all the experts seem to agree this p much describes the situation

What is "clearly within congressional power in the Constitution" is a matter of opinion!

and that's what originalists don't want to accept and English majors know: interpreting law is interpreting literature.

the most obvious: a person can go her whole life without participating in the broccoli market. a person can never, ever, ever go her whole life without participating in the healthcare market.

if you go your whole life without participating in the broccoli market you are def participating in the healthcare market

idk all the experts seem to agree this p much describes the situation

strongly disagree. this law is clearly blazing new territory, a point made several times in the questioning excerpts posted above. if i didn't agree very strongly that "something needs to be done" about the cost of healtcare/health insurance in america, and if i wasn't a die-hard political supporter of the democratic party, i'd probably agree that it should be struck down.

i was talking abt what experts think

uh have you read stuff that wasn't the questioning excerpts posted above

The only experts we should pay attention to are the ones we agree with.

theres a reason why 85% of experts polled think the law will stand despite the courts strong conservative bias and tendency to behave politically

Toobin: the 1% of experts.

well it would be interesting to have them repolled now, since he was in the 85% at the outset

Did these experts expect the Court to rule definitively about the entire law?

its was specifically re the individual mandate

whoah dandy don! where ya been

all of the "expert" opinions I've read are sort of stretched reasoning by analogy one way or the other. I really don't think there's any part of "...to regulate commerce...among the several states" that makes it clear that Congress can or can't require people to buy health insurance. It's a blank slate as far as I'm concerned. I mean if you were to go by the *original intent* (drudge sirens) of the *founding fathers*, Congress couldn't do 90% of what it does under the commerce clause as it is, b/c the point of the commerce clause was to prevent interstate trade problems, not to engender national regulation of all commercial activity. So at this point it's just a question of whether the court decides the reasoning of post-FDR commerce clause jurisprudence should be taken yet another little step further or not, and I think that decision is pretty arbitrary without politics coming into it.

if you were a conservative justice concerned abt political optics preparing oneself to uphold the individual mandate youd prob want to look tough and skeptical during the oral arguments so as to project that you pondered the whole thing v seriously

The only experts we should pay attention to are the ones we agree with.

― dandydonweiner, Tuesday, March 27, 2012

"We are under a Constitution, but the Constitution is what the judges say it is" – Charles Evans Hughes

whether the court decides the reasoning of post-FDR commerce clause jurisprudence should be taken yet another little step further or not, and I think that decision is pretty arbitrary without politics coming into it.

there's not a way for politics to not come into it, even if we were pretending that they were good little legal philosophers and not political actors

My legal theory, btw, is that conservatives are really appealing to the Constitution's implied "you can't make me do stuff" clause, but they don't want to admit it.

i was talking abt what experts think

― lag∞n, Tuesday, March 27, 2012 11:50 AM (12 minutes ago) Bookmark Flag Post Permalink

uh have you read stuff that wasn't the questioning excerpts posted above

― iatee, Tuesday, March 27, 2012 11:50 AM (12 minutes ago) Bookmark Flag Post Permalink

"experts" aren't unitary, and aren't the easiest group to define for polling purposes

yes, i've read stuff beyond the questioning

the simple fact that the individual mandate federally compels all american citizens to participate in a market in a certain way makes that part of the legislation constitutionally novel - note that i'm not saying anything about whether or not it will be overturned

Sotomayor's explanation of how insurance provides care (instead of conflating the two, as we and the media have often done) was lucid.

whoah dandy don! where ya been

Working too much, family, etc. Also, waiting anxiously for threads like this to arrive and wishing Gabbneb would come join the fun or something.

gabbneb's been permabanned

He's on the short list of Obama's high court nominees though.