Roberts vs Obama: Affordable Health Care Act goes to SCOTUS

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.

gabbneb's been permabanned

seriously?

my god Roberts and Alito arguing with Verrilli about the efficacy of offering substance abuse riders, maternity, etc and Stuff Lots of People Won't Use.

is Nino this out of touch?

GENERAL VERRILLI: Well, that was the point
I was trying to make, Justice Kagan, that you're young
and healthy one day, but you don't stay that way, and
the system works over time. And so, I just don't think
it's a fair characterization of it. And it does get
back to, I think, a problem I think is important to
understand -­

JUSTICE SCALIA: These people are not stupid. They're going to buy insurance later. They're young and
need the money now.

GENERAL VERRILLI: But that's -­

JUSTICE SCALIA: When they think they have a
substantial risk of incurring high medical bills,
they'll buy insurance, like the rest of us.

GENERAL VERRILLI: But that's -- that's -­

JUSTICE SCALIA: I don't know why you think
that they're never going to buy it.

GENERAL VERRILLI: That's the problem,
Justice Scalia. That's -- and that's exactly the
experience that the States had that made the imposition
of guaranteed issue and community rating not only be
ineffectual but be highly counterproductive.

seriously?

yeah I forget why. it was awhile ago.

xp

Can't we just end this whole charade and give everyone Medicaid/Medicare who wants it?

the problem is people only want it when they're sick

dandy don otm

Ten or whatever years ago, this would have actually bothered me.

Now I just don't give a fuck anymore.

I've listened to three quarters of this thing, and I can't understand Toobin's hysterics. Verrilli did fine. Roberts, to my surprise, agreed with him on a number of points and sounds like he's ready to affirm at least a part of the law; what concerns him, as he also pointed out several times, is the federal government's control over the method of payment.

It would be a shock if most of the law wasn't affirmed.

when you look at how heavy the media scrutiny is of this case its inevitable that some of them are gonna think they see some crucial piece of info and freak out over it

x-post-

Not really.

if it's struck down, Obama will def get a landslide in November

if its struck down, im not saying that someone should assassinate a justice or two

or yknow 5

TPM otm;

The snap reactions to today’s Supreme Court arguments about the constitutionality of the health care law’s individual mandate gave reform supporters a collective case of heartburn. The conservative justices seemed broadly hostile to the law’s requirement that everyone carry health insurance. President Obama’s Solicitor General, Donald Verrilli, was widely panned by experienced court watchers for stumbling at key moments. Jeffery Toobin — a seasoned vet of the high court — called it a “train wreck” for the Obama administration.

Here’s some antacid.

Over the first two days of arguments, two of the Court’s five conservative justices have expressed sympathy for key parts of the administration’s arguments. And the administration probably only needs one of their votes to fully uphold the law.

That’s the view of former acting Clinton Solicitor General Walter Dellinger, who sat down with me and a handful of other reporters after watching the arguments. Dellinger tamped down on some initial criticism’s of his successor’s performance before the court. And, crucially, he highlighted an exchange that occurred on Monday — one we broke down here — in which Chief Justice John Roberts appeared to reject the cornerstone of the challenger’s argument.

“Yesterday the Chief Justice said that it doesn’t make much sense to say that the mandate is separate from the penalty or the tax,” Dellinger said. “He seemed yesterday to have accepted the government’s argument that there’s a real choice here. If you don’t want to have health insurance that you can pay the tax penalty.”

i personally dont believe in assasinating supreme court justices, but if i did and if i had high level sniping skills

If you don’t want to have health insurance that you can pay the tax penalty.”

I need to make a poster from this phrase.

Only I think it will say,

"If you don't want to have _____________________ " then you can pay the tax penalty.