Roberts vs Obama: Affordable Health Care Act goes to SCOTUS

I mean, the price of basic burial services

sometimes justices ask hypotheticals to get counsel to focus on essentials; sometimes they ask questions that they genuinely think has something to do with the matter at hand; sometimes they're assholes.

think this is the latter

burial services also a quarter of the US GDP or whatever healthcare is now

also NOT argh

if the court strikes down the individual mandate, regardless of how narrow/surgical/precise it is, it will be used as precedent for future challenges to other federal programs

JUSTICE KENNEDY: Could you help -- help me
with this. Assume for the moment -- you may disagree.
Assume for the moment that this is unprecedented, this
is a step beyond what our cases have allowed, the
affirmative duty to act to go into commerce. If that is
so, do you not have a heavy burden of justification?
I understand that we must presume laws are
constitutional, but, even so, when you are changing the
relation of the individual to the government in this,
what we can stipulate is, I think, a unique way, do you
not have a heavy burden of justification to show
authorization under the Constitution?

GENERAL VERRILLI: So two things about that,
Justice Kennedy. First, we think this is regulation of
people's participation in the health care market, and
all -- all this minimum coverage provision does is say
that, instead of requiring insurance at the point of
sale, that Congress has the authority under the commerce
power and the necessary proper power to ensure that
people have insurance in advance of the point of sale
because of the unique nature of this market, because
this is a market in which -- in which you -- although
most of the population is in the market most of the
time -- 83 percent visit a physician every year; 96
percent over a five-year period -- so virtually
everybody in society is in this market, and you've got
to pay for the health care you get, the predominant way
in which it's -- in which it's paid for is insurance,
and -- and the Respondents agree that Congress could
require that you have insurance in order to get health
care or forbid health care from being provided -­

JUSTICE SCALIA: Why do you -- why do you
define the market that broadly?

UGH. Nino actually used the broccoli theory.

I wonder how roberts feels about his legacy as presider over the 'roberts court' - have heard that he was a bit shaken over how widely reviled citizens united is, maybe he's a little bit invested in protecting his legacy? idk

Ginsberg to the rescue:

JUSTICE GINSBURG: Mr. Verrilli, I thought
that your main point is that, unlike food or any other
market, when you made the choice not to buy insurance,
even though you have every intent in the world to
self-insure, to save for it, when disaster strikes, you
may not have the money. And the tangible result of it
is -- we were told there was one brief that Maryland
Hospital Care bills 7 percent more because of these
uncompensated costs, that families pay a thousand
dollars more than they would if there were no
uncompensated costs. I thought what was unique about this is it's
not my choice whether I want to buy a product to keep me
healthy, but the cost that I am forcing on other people
if I don't buy the product sooner rather than later.

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

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