Breaking: "The Mandate is in Trouble"
That was the early assessment of SCOTUSblog's Tom Goldstein, during a break in today's Obamacare oral argument. For one thing, Justice Kennedy -- the presumptive swing vote -- seemed genuinely concerned about the mandate's impact on individual liberty. On top of that, says Goldstein, Paul Clement -- the lead attorney for the challengers -- gave a "superb" presentation. I would add that Goldstein speaks as a friend of Obamacare -- literally. He wrote one of the amicus briefs supporting the mandate.
The argument is now finished, and the early buzz is that Obama has locked up (as expected) the votes of the four liberal justices, but it is not clear whether they can get a fifth vote. Kennedy may yet support the mandate; it's conceivable that Alito might as well. But, if they don't, Obama might come to regret scolding the Supreme Court on national TV for a decision (Citizens United) written by Kennedy with Alito concurring.
I'll post more once I've read the transcript.
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Re: Breaking: "The Mandate is in Trouble"
So I guess Linda Greenhouse is just super confused right now?
Aug '11
Re: Breaking: "The Mandate is in Trouble"
I guess I'll take a 5-4 decision against. Though that's a bit to close for comfort. But I desperately wish for a complete smackdown.
May '10
Re: Breaking: "The Mandate is in Trouble"
That comment is either incredibly cynical or incredibly sad.
If you're right, it's a powerful demonstration of the overwhelming influence of human nature on any human activity, including law. Even the best systems rely on the willful goodness of individual persons.
Re: Breaking: "The Mandate is in Trouble"
This post on Scotusblog about it being Kennedy's call is worrisome.
Re: Breaking: "The Mandate is in Trouble"
Aaron Miller
That comment is either incredibly cynical or incredibly sad.
If you're right, it's a powerful demonstration of the overwhelming influence of human nature on any human activity, including law. Even the best systems rely on the willful goodness of individual persons. · 3 minutes ago
That was my reaction too, Aaron. I hope that vengeance has no influence on such a weighty decision.
Re: Breaking: "The Mandate is in Trouble"
Aaron Miller
That comment is either incredibly cynical or incredibly sad. · 1 minute ago
Aaron, I'm not sure I understand. My point is simply that Supreme Court justices are human beings; in fact, human beings with very, very healthy egos. If you're Anthony Kennedy, a man who has been on the bench since Reagan, and the pressure is on you to uphold the "signature achievement" of President Obama, won't be just a teensy bit influenced by the fact that President Obama has publicly denounced you for writing an opinion that "undermines democracy?"
Re: Breaking: "The Mandate is in Trouble"
Diane Ellis, Ed.
That was my reaction too, Aaron. I hope that vengeance has no influence on such a weighty decision. · 0 minutes ago
Okay, okay, agreed, on the merits of the thing. But see my comment above.
Re: Breaking: "The Mandate is in Trouble"
I don't think so. We all expected Kennedy to show some sympathy for the administration's position, but the fact that he asked some penetrating questions about the mandate's effect on the relationship of individual to government is encouraging. Don't give up hope.
Jun '10
Re: Breaking: "The Mandate is in Trouble"
The only way it survives is if five justices are convinced that health care is somehow very different than every other expense in life (or death.) They can make you buy health insurance, but they can't make you buy burial insurance. They're both costs guaranteed to arrive someday. What's the difference? I don't know how they'd differentiate the government's ability to force one, and not the other.
Mar '11
Re: Breaking: "The Mandate is in Trouble"
Aaron Miller
That comment is either incredibly cynical or incredibly sad.
If you're right, it's a powerful demonstration of the overwhelming influence of human nature on any human activity, including law. Even the best systems rely on the willful goodness of individual persons.
If there is anything I have taken away from the Law Talk podcasts, it is the degree to which the justices base their decisions on political/emotional factors. Downright depressing if you ask me.
Mar '11
Re: Breaking: "The Mandate is in Trouble"
Diane Ellis, Ed.: This post on Scotusblog about it being Kennedy's call is worrisome.
6 minutes ago
I didn't enjoy the first run of this episode when Kennedy saved Roe (http://en.wikipedia.org/wiki/Anthony_Kennedy#Abortion, and n. 21), and I'm not looking forward to the repeat on Obamacare.
May '10
Re: Breaking: "The Mandate is in Trouble"
What does this mean Adam? That the justices indicated their support for the mandate in their comments? Or that they had been lobbied and provided assurances. It surely can't mean the latter, can it?
Jul '10
Re: Breaking: "The Mandate is in Trouble"
The transcript and audio are up and available here.
Re: Breaking: "The Mandate is in Trouble"
Trace Urdan
What does this mean Adam? That the justices indicated their support for the mandate in their comments? Or that they had been lobbied and provided assurances. It surely can't mean the latter, can it? · 6 minutes ago
No overt assurances. But the reports are that the 4 liberal justices tipped their hands by asking very critical questions of the Paul Clement, while going easy on the government's lawyer. "Locked up" is my hyperbole, I admit, but I really can't see any of those 4 voting to strike down the mandate and apparently the tenor of their questions confirmed that.
Jul '11
Re: Breaking: "The Mandate is in Trouble"
Kennedy and Alito are highly aware of the historical impact of this decision and both hearken back to the teachings and rulings of William Rehnquist who was very aware of the potential for unlimited federal power resulting from misinterpreting the commerce clause. This will be 5-4 against on this particular issue.
Re: Breaking: "The Mandate is in Trouble"
jeffp
I didn't enjoy the first run of this episode when Kennedy saved Roe (http://en.wikipedia.org/wiki/Anthony_Kennedy#Abortion, and n. 21), and I'm not looking forward to the repeat on Obamacare. · 14 minutes ago
I agree that Kennedy's performance in Casey was deplorable. But his questions today have been on point, e.g., his first question suggested that the mandate would "fundamentally" change the relationship between state and citizen, and that the government would bear a "heavy burden" to justify it. It's a good start, but by no means does that guarantee that he will rule in our favor.
Re: Breaking: "The Mandate is in Trouble"
Mollie, I would say that Linda Greenhouse is always super-confused. The commentary by Greenhouse, et al to the effect that this is an "easy" case is simply setting the stage to lambast any justice who votes against the mandate for making a "political" decision.
Jul '10
Re: Breaking: "The Mandate is in Trouble"
Sotomayor gives a nod to OWS:
We really can't let Obama pick any more justices.
Feb '11
Re: Breaking: "The Mandate is in Trouble"
etoiledunord:
They can make you buy health insurance, but they can't make you buy burial insurance. They're both costs guaranteed to arrive someday. What's the difference? I don't know how they'd differentiate the government's ability to force one, and not the other. · 30 minutes ago
Health care is not guaranteed to arrive. People do get hit by trains, blown up, shot on the head etc.
Jul '10
Re: Breaking: "The Mandate is in Trouble"
Can't tell you how good it felt to read this, the second question of the day: "JUSTICE KENNEDY: Can you create commerce in order to regulate it?"