Roberts vs Obama: Affordable Health Care Act goes to SCOTUS

i really don't get the 'mandate is unconstitutional' argument, unless you also think that social security and medicare are unconstitutional.

neither contains any obligation to participate in a public market in a specific way

social security is not something you purchase

if we had a single-payer system, none of this would be in question

something else would probably be in question, but that's a given...

Here, don

Am I missing something then?

If SCOTUS agrees with the feds on this, expansion of taxing power will be validated.

― dandydonweiner, Tuesday, March 27, 2012 5:32 PM (16 minutes ago) Bookmark Flag Post Permalink

laws are presumed constitutional until found otherwise. congress has the power to tax in this manner, because it went and did that. two years later we're finding out whether it was constitutional

Social Security is also structured as a tax and the constitution authorizes congress to impose taxes.

SCOTUSblog's summary:

That argument, indeed, was the one that the conservative members of the Court repeatedly pressed while the Solicitor General was offering his defense. The fear of this Orwellian prospect led Justice after Justice to ask for some constitutional principle that would limit the expected damage to the Republic. Verrilli’s main response was the uniqueness of the health insurance industry, but that did not deter the continued complaint from the bench that Congress would not stop there if it had the endorsement for this initial foray into Super Government.

Justice Stephen G. Breyer was the most vigorous defender of Congress’s power to select the mandate as the key piece in the new health care law’s regulation of the insurance industry, but almost equally in its favor were Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. But those four, of course, cannot control the outcome on their own. But, in the end, if Kennedy were to wind up accepting the mandate’s validity — however reluctantly — those four could then be in the majority. Such a majority, it appeared, would probably form only behind the theory that the mandate was within Congress’s power under the Commerce Clause, not under its taxing authority in the General Welfare Clause. The tax argument seemed to lack force, and, anyway, Verrilli used it primarily as just a backup.

If that coalition were to form, it would be likely that Justice Kennedy, the senior among those five, almost certainly would assign the opinion to himself — unless, of course, the Chief Justice ultimately were persuaded to go along so that this historic case did not turn out to be decided by a possibly embarrassing 5-4 vote. Roberts was among the more combative adversaries of the mandate, during Verrilli’s argument, but he made considerable efforts to remind the challengers’ lawyers of the government’s key points, perhaps to test how solid their answers to those points would be. His vote in favor of the mandate did seem like a long shot, unless he found institutional imperatives for going along if a majority were to uphold it.

If a majority vote to uphold the law and Kennedy assigns himself the opinion, its core will rest on something he said today:

“I think it is true that, if most questions in life are matters of degree,” it could be that in the markets for health insurance and for the health care for which insurance was the method of payment “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.”

It's amusing to me how so many Supreme Court discussions generally treat Thomas as if he doesn't exist. Like his vote in every case is so clearly known, as is the unlikelihood of him contributing anything to the debate. Which is accurate, but still amusing.

he is truly an umpire

chumpire

Slobbo just sits there doing crossword puzzles

why do you call him slobbo, alfred?

he literally doesn't contribute to the debate. I think Thomas has spoken up during oral argument once in his career.

xp have you seen the guy?

On one hand I admire a fellow who admits to his limitations and is confident of his strengths; but having read Jane Mayer's booklength bio, his disgraceful responses to an interview about good opinion writing, and a chunk of his insufferable memoir I made a few conclusions last year, I wonder about his shall we say conflict about how and why he's on the court.

Let me be fair and quote an admissible response:

BAG: So why is it that you don’t ask questions at oral argument?

CT: Too many.

BAG: If it were much lighter and you didn’t feel as if you were
adding to the cacophony of voices, you might?

CT: Oh, yeah.

BAG: You might ask more questions?

CT: Oh, absolutely. I mean, it wouldn’t be rude. I think it’s just
too much. And I don’t normally ask a lot of questions, but
it’s much easier to move into traffic when people aren’t
bumper-to-bumper at 60 miles an hour. And I think that
that’s where we are now, and I much preferred it the way it
was when I got here. I think that oral argument should be a
conversation. There are nine members of the Court, and
they should talk to the person out there. That person isn’t
your enemy, that person is not a combatant, that person is
not a bad person. The person is participating in an important
decision-making process. I think they should be treated
that way, with respect and the dignity that we expect. I don’t
like the back-and-forth, and I’ve been very clear about that,
and I won’t participate. I had about 40 arguments when I
started out as a young lawyer, and I was never treated this
way. If I had, I would’ve probably had a stroke. I mean, I
was so petrified.

BAG: How often does your mind change during an oral argument?

CT: Almost never. You can go whole terms without it ever
changing. That’s my point. And I’m almost certain that my
colleagues’ minds don’t change in maybe max 10 percent, 5
percent of the cases. Or it does change in 5 or 10 percent of
the cases, maybe, and I’m being generous there. And if that’s
the case, then why are the arguments so intense? And there’s
got to be some arguments where the questioning is not
intense. I think it would make for a better argument. I think
it would be better for the people who come up here to be
able to say they got their points. I think that’s very important.
There have been any number of 9–0, 7–2, 8–1 — when
you have votes like that, doesn’t it suggest to you that that
wasn’t a very hard case? And on the courts of appeals, there
are many cases where there is no oral argument. So if you
go with me for a minute, let’s just say half the cases are fairly
easy, let’s say a third; then that would suggest that a third of
the arguments should not be intense questioning — there
shouldn’t be intense questioning — that it should not be an
ordeal but rather an experience for the lawyer that it’s a participation
in a very, very important process. And I would
like it to go back to that. And why you see me not participate
is, again, normally I don’t ask questions. I didn’t ask
any questions in high school, college, or law school.

That is some dumb irresponsible bullshit. Maybe he should step down if he thinks DOING HIS JOB would be a bad thing.

I don’t ask questions. I didn’t ask any questions in high school, college, or law school.

incredible.

that's the part which made me gape

honestly I don't take issue with the rest of what's excerpted, other than that part

a lot of the rest of that interview sounds totally likable and normal but that last point ugh.

xpost

yes

hard to imagine sitting through law school and not asking a single question wtf

In my link he makes a number of workaday observations about the importance of editing whose utility and lack of pretension is refreshing, neither of which I can appreciate because his jurisprudence is so facile. It's not in the Constitution? No? Next!

eh, he's right - at the supreme court level, oral arguments don't really matter...but to outside observers they present the only analyzable 'in' to have into the black box process of how a case is decided

also, for the google search "clarence thomas slobbo" Alfred + ILX is at the top of the list

thanks!

you've finally made it

http://rootsaction.org/storage/clarence-thomas.jpg

he has very malleable skin

is it just me btw or does clarence thomas seem like a serious depressive? i'm not talking about that particularly photo, just his whole demeanor/ethos/personality.

he must've been deeply scarred by law school Socratic questions (which, TBF, can be a tedious game of "hide the ball" in the hands of the wrong people [i.e., many law-school professors])

thomas can't have a happy home life either.

someone take that "cheer up keanu" image and turn it into "cheer up clarence thomas" image thanks

If you've got a couple of hours read his memoir. Raised by a brutal, inexorable, loving grandfather, not learning proper English until adolescence, coming of age at the cusp of a civil rights movement about which he was at best ambivalent, Thomas would be fascinating if he could write better about it.

(I don't expect his jurisprudence to "reflect" this upbringing though)

Reading Jane Mayer’s excellent The Selling of Clarence Thomas a few years ago, I was amazed by the tortured ambivalence with which he regarded his education and job in the Reagan administration: Yale and the EEOC only accepted him because he was black, therefore, he reasons, there’s something wrong with those institutions, with me, or both. Contemptuous of affirmative action because it will not allow black men and women to rise on their merits, he can’t live with the probability that his own extraordinary rise resulted from tokenism, as of course it did, and so what? Thomas Sowell aside, how many black conservatives did National Review endorse?

That is some dumb irresponsible bullshit. Maybe he should step down if he thinks DOING HIS JOB would be a bad thing.

― neutral sequence for flute (blank), Wednesday, 28 March 2012 00:16 (48 minutes ago) Permalink

I don't agree with this. Supreme Court cases are heavily briefed. Each side makes every conceivable argument in print well before they're called in for oral argument, and there's nothing irresponsible about deciding on the briefs.

The tragic irony on which his career depends is being nominated as a SCOTUS by white patrons (John Danforth, George H.W. Bush) who encouraged him precisely because he was a black conservative and thus a commodity.

is it just me btw or does clarence thomas seem like a serious depressive? i'm not talking about that particularly photo, just his whole demeanor/ethos/personality.

― flesh, the devil, and a wolf (wolf) (amateurist), Tuesday, March 27, 2012 9:05 PM (59 minutes ago) Bookmark Flag Post Permalink

ya he displays a striking amount of inner conflict

it strikes me that he's the classic New Critic: decisions whose concentration on a golden past and dismissal of contemporaneity hide deep personal turmoil.

ya he doesnt like now because he experiences it as unbearably painful

Why are religious exemptions from the individual mandate allowed?

http://www.washingtonpost.com/blogs/ezra-klein/post/wonkbook-do-todays-oral-arguments-matter/2012/03/27/gIQAb2dydS_blog.html

So what a waste of time, money and other resources if this thing gets struck down because of the mandate. Which, of course, was part of the compromise needed to get this thing passed in the first place, and even then, just barely, and even further then, with some serious backroom political machinations. Would we be here if there was single payer?

Of course we would be. This was going to the Supreme Court whichever direction the legislation took.

I don't agree. The mandate created a *hook* for certiorari. If it was just "medicare for all" I don't really see how this would be in the Supreme Court. The problem is that Congress never could have passed medicare for all.

So what a waste of time, money and other resources if this thing gets struck down because of the mandate.

― Josh in Chicago, Wednesday, March 28, 2012 9:08 AM (2 hours ago) Bookmark Flag Post Permalink

in all likelihood it would just be the mandate that gets struck down while the rest of the act would stand

Which makes the entire thing untenable iirc

Yeah, minus the mandate it can't work. It sort of reaches the death by 1000 cuts stage, sort of like what the GOP has been up to with abortion. If we can't ban it, we'll just break it.