Calling Counsellor Freedman
Adam, after looking over the transcripts of today's oral argument with your usual incision and insight, could you answer one question: What the heck us up with Mr. Justice Kennedy?
I thought, as did a lot of people--including journalists, such as Jeffrey "This is a Train Wreck" Toobin, who were in the chamber itself--that Justice Kennedy seemed overtly, if genteely, hostile toward the individual mandate. Yet some informed opinion begs to differ, insisting that by the end of the session the justice had changed his mind.
Just get a load of this report on scotusblog.com, to which Ricochet member wmartin drew everyone's attention in a post earlier today. Toward the end of the argument, the report explains, Justice Kennedy took up an argument in favor of the individual mandate that Justice Breyer had just mentioned:
“I think it is true that, if most questions in life are matters of degree [Justice Kennedy said]," 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.”
That was the core of Verrilli’s [that is, the solicitor general's] claim about what Congress had confronted, and Kennedy had just phrased it — not as the government’s argument — but as his own perception. In both tone and content, it was a sudden change.
To quote wmartin, "Kennedy ended the argument restating the Obama administration's case in his own words....we lost today."
Adam?
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Apr '11
Re: Calling Counsellor Freedman
I really hate this. My heart was leaping along with Peter's when I heard the first reports out of the court. Hopefully, I am being too much of a pessimist.
Jul '11
Re: Calling Counsellor Freedman
My lawyer buddy told me two days ago that Wm Rehnquist would be reaching through time to influence Justice Kennedy. He was right.
Dec '10
Re: Calling Counsellor Freedman
Sorry, Peter, if you get excitable over anything Kennedy says. My rule with him is to take two aspirin and check back in the summer.
Mar '11
Re: Calling Counsellor Freedman
Pessimism is win-win... you either get to be right or happy.
Jul '10
Re: Calling Counsellor Freedman
It seems to me at least, that Carvin's response was well designed to sway someone who is a fair-minded, maybe not so principled, practical type:
Feb '11
Re: Calling Counsellor Freedman
Peter, they left out the sentences Kennedy said just before that comment:
Further, in an earlier question Kennedy said:
May '10
Re: Calling Counsellor Freedman
Peter, I wouldn't get too high or too low on the court proceedings. Yes, oral arguments will play a part but they are only a small part. And after all, we conservatives face enormously long odds to have the individual mandate overturned in the first place.
Obamacare delenda est.
May '10
Re: Calling Counsellor Freedman
I am in the middle of a long series of depositions thanks to my day job. Keep the updates coming, and keep 'em short!
Re: Calling Counsellor Freedman
Hey, Freedman here. It's hard to tell when any judge -- especially Kennedy -- is playing Devil's advocate or speaking from the heart. Kennedy is certainly unpredictable, which is why it's not time to break out the champagne (I'm posting a brief audio summary of the argument in a minute). As for Toobin, I just don't trust any of his pronouncements. He's a sensationalist, and is setting up the argument that the "conservatives" had their minds made up going into the argument.
But in the early part of the argument, Kennedy seemed to have more passion about his skepticism of the government's authority to fundamentally change the relationship of citizen and state via the Commerce Clause. Who knows? But I don't read the transcript as an intellectual journey in which Kennedy ends up persuaded by the Solicitor General. The Solicitor General's presentation just wasn't that good.
Apr '11
Re: Calling Counsellor Freedman
Sotomayor:
"Can the government force you into commerce, and there is no limit to that clause?
http://mrctv.org/videos/justice-sotomayor-skeptical-about-claims-individual-mandate-isnt-justified-limitless-interpretation-commerce-clause
Re: Calling Counsellor Freedman
An important point. The Solicitor General was completely outgunned by Clement and Carvin. If we assume Kennedy is persuadable, then there is still hope. His comment is troubling, but it did not sound like a man who had been won over by the government.
Oct '10
Re: Calling Counsellor Freedman
Professor Althouse has a theory or a conspiracy theory on why the SG "is a train wreck". It is related to Obama's re-election chances.
Oct '11
Re: Calling Counsellor Freedman
It's mid semester so I'm half way through a Business Law class that I'm taking at community college. After listening to the audio of yesterday's and today's oral arguments, I can't get over how, ummm, dense Sotomayor is. The holes in her logic were so massive that someone with a minute fraction of the education she has (me) could see them. Frankly, I'm kind of shocked.
Oct '11
Re: Calling Counsellor Freedman
Casey
Pessimism is win-win... you either get to be right or happy. · 2 hours ago
Aw, man, take off those rose-colored glasses.
Oct '10
Re: Calling Counsellor Freedman
I didn't hear her, but I was disappointed by Scalia's question attempt to equate the govt's forcing you to buy health insurance with the govt's forcing you to buy broccoli. In that exchange, at least, he had the wrong analogy; the analogy to the govt's forcing you to buy broccoli would be the govt's forcing you to have diabetes surgery. That may be a long-term implication of this law, but it isn't what is proposed. Scalia sounded downright complacent in that exchange.
(Thank goodness for the spell-checking of broccoli.)
Oct '10
Re: Calling Counsellor Freedman
I have a bad feeling about this (that should be the unofficial motto of the conservative movement).
It seems inevitable that the plurality opinion will walk some tightrope that upholds the mandate, subject to a contrived limiting principle claiming that this kind of mandate is only valid in the health insurance context, because health insurance is special.
And future courts will obviously throw that limitation right out the window, because it's crazy on its face.
Mandatory calisthenics for all!!!
But maybe I'm wrong.
Aug '10
Re: Calling Counsellor Freedman
I think Blake is dead right. Any significant limitation on the commerce clause was lost in the sick chicken case. It is congress who must repeal this abomination and every other bit of do-gooder legislation of the past eighty years that plainly oversteps the common sense meaning of the commerce clause. But it won't because the American people tolerate that congressional crap year in and year out.
Edited on March 28, 2012 at 4:22amAug '10
Re: Calling Counsellor Freedman
I love how we are asking the Lawyers if the court should allow the individual mandate.
I am (have been) a soldier my entire adult life. There have been times when I have advocated compulsory universal service. I have not done so since I realized that such compulsory service is akin to slavery - yet it remains within our country for limited periods a requirement for service to the state (both the Draft and Jury Duty fit this definition - both are for limited periods of time)
The Individual Mandate is a requirement for involuntary servitude (slavery) for the life of each individual - and the court treats the arguments in favor of it as though they are worthy of both discussion and perhaps merit.
Shameful.
Edited on March 28, 2012 at 4:37amAug '10
Re: Calling Counsellor Freedman
For some reason, I can't edit on the ipad. My previous post is corrected thusly: I think Blake is dead right. Any significant limitation on the commerce clause was lost in Wickerd v. Philburn. It is congress who must repeal this abomination and every other bit of do-gooder legislation of the past eighty years that plainly oversteps the common sense meaning of the commerce clause. But it won't because the American people tolerate that congressional crap year in and year out. Quite frankly, most Americans want a nanny state.
Jul '11
Re: Calling Counsellor Freedman
Kennedy is not going to destroy this country. If this garbage flies then virtually anything will. I think he was trying to be polite after the SG was wallowing in stupidity all day just as Sotomeyor was being polite to the other conservative justices before she rules for her buddy.