In the High Court This Morning. Oh, Can This Be True?

 

From the Los Angeles Times, a dispatch:

Picking up where they left off Tuesday, the conservatives said they thought a decision striking down the law’s controversial individual mandate to purchase health insurance means the whole statute should fall with it.

The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional.

“One way or another, Congress will have to revisit it in toto,” said Justice Antonin Scalia.

Agreeing, Justice Anthony Kennedy said it would be an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.

Meanwhile, the court’s liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a “salvage job,” not undertake a “wrecking operation.” But she looked to be out-voted.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they shared the view of Scalia and Kennedy that the law should stand or fall in total. Along with Justice Clarence Thomas, they would have a majority to strike down the entire statute as unconstitutional.

Hard to imagine that the L.A. Times would print a story purely to mess with my mind, but this sounds so good–so in excess of even my fondest hopes–that I can’t help wondering how it could possibly be true.

Adam Freedman?  Calm me.

ObamaCare delenda est.

There are 49 comments.

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  1. Profile Photo Inactive
    @Fredosphere

    Oooooooooh. If Ginsburg used the word “salvage”, then even a doubter like me has to admit, the tea leaves are looking awfully friendly.

    • #1
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    @TroySenik

    Absolutely fascinating. Two thoughts:

    1. If SCOTUS really does scrap the entire law, Obama will launch the biggest crusade against the federal judiciary since FDR, campaigning against them as another elite institution hellbent on obstructing the relief he is trying to bring to everyday Americans.

    2. If the law is completely overturned, it likely also hurts Mitt Romney’s presidential bid. A lot of conservatives who are otherwise less than anxious to reconcile themselves to a Romney nomination are willing to do so because they see it as the only way to get to a repeal of Obamacare. Take that out of play and their passions may cool further. That’s not necessarily rational, but I suspect it will be the reaction in some quarters.

    • #2
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    @PeterRobinson
    Fredösphere: Oooooooooh. If Ginsburg used the word “salvage”, then even a doubter like me has to admit, the tea leaves are looking awfully friendly. · 2 minutes ago

    Fredo, I’m counting on you to compose the celebratory music.  Something a little like the final movement of Beethoven’s Ninth, perhaps?

    • #3
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    @DavidWilliamson

    So far, Judge Vinson is looking pretty good. Weren’t the Obama administration supposed to obey his ruling, or something?

    • #4
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    @CaptAubrey

    I’m a luke warm Romney supporter and I welcome defeat of Obamacare by the Justices. It will also  be interesting to see him attack the court that has historically been the left’s friend and the right’s foe.

    • #5
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    @Palaeologus

    Today’s transcript and audio are available.

    I don’t know from the economy, but Obamacare is definitely killing my productivity.

    • #6
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    @WyleeCoyote
    Capt. Aubrey:  It will also  be interesting to see him attack the court that has historically been the left’s friend and the right’s foe.

    He already has, in the wake of Citizens United, taking shots at them during a State of the Union when they were sitting in the audience.

    • #7
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    @TheKingPrawn

    A law passed unread by the slimmest of partisan majorities, enacted with controversy after controversy, costing already twice the touted price, and antithetical to the individual liberty the nation was founded on cannot possibly be constitutional. I believe anyone without an agenda can see that.

    • #8
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    @

    But it will make what will already be an incredibly divisive election even more so. The sole reason voters will give to vote for Obama will be to prevent a Republican from being in a position to nominate a Supreme Court Justice. For many, this would become a single-issue election, with the economy being an after-thought.

    The base will have been quite effectively rallied.

    • #9
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    @DianeEllis

    A little something to temper your optimism from SCOTUSblog:

    The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.  A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself.

    • #10
  11. Profile Photo Member
    @MBF
     

    Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they shared the view of Scalia and Kennedy that the law should stand or fall in total. Along with Justice Clarence Thomas, they would have a majority to strike down the entire statute as unconstitutional.

     

     

    I don’t think I have seen a single analysis of the oral arguments that describes the words and/or demeanor of Justice Thomas. Everyone else is having their words dissected to the finest degree.

    Is this becaue he is just sitting there silently with that look on his face that screams, “are we seriously debating this?”

    Is it possible that he writes his own opinion in which he goes postal on the modern-day progressive interpretation of the commerce clause?

    • #11
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    @Lag0s

    I will be echoing comments composed by others much more eloquently during yesterday’s discussion, but I get the feeling that Kennedy will agree with the conservative Justices on this point, only to ultimately conclude that the mandate must be upheld and therefore the entire law will be as well. Just because he agrees the mandate isn’t severable doesn’t mean he will strike it down.

    • #12
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    @AdamFreedman

    Not to be a wet blanket, but I would remain calm at this point.  The argument over “severability” sounds great, because the whole question is: if we strike down the mandate, what else comes down?  It’s a great hypothetical, but it’s just a hypothetical. 

    Unfortunately, Kennedy’s suggestion that the mandate is not severable from the rest of the law might end up being his rationale to uphold the mandate (so as to avoid the imagined “chaos” that would ensue from scrapping such a comprehensive piece of legislation).  It was Scalia who said today that it “just couldn’t be right” that all of the ACA provisions unrelated to the mandate had to fall with it.   Kennedy might need some convincing that he can strike down the mandate and preserve the other bits of the law.

    • #13
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    @Casey

    Unless I put my hand in the side of a stricken down Obamacare, I will not believe it.

    ‘Tis the season.

    • #14
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    @TheKingPrawn
    Diane Ellis, Ed.: A little something to temper your optimism from SCOTUSblog:

    The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, butmay have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.  A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.

    2 minutes ago

    So you’re saying they may be too lazy to do the work? Either the mandate is constitutional or it is not irrespective of the rest of the law’s constitutionality.

    • #15
  16. Profile Photo Inactive
    @Fredosphere
    Peter Robinson

    Fredösphere: Oooooooooh. If Ginsburg used the word “salvage”, then even a doubter like me has to admit, the tea leaves are looking awfully friendly. · 2 minutes ago

    Fredo, I’m counting on you to compose the celebratory music.  Something a little like the final movement of Beethoven’s Ninth, perhaps? · 6 minutes ago

    What a coincidence. I was just now playing the words to Leonard Cohen’s Hallelujah in my head, to see if there were possibilities for a parody.

    Now I’ve heard there was a mighty court That said in Roe v. Wade, go ahead, abortBut you don’t really care for due process, do you? It goes like this The fourth, the fifth Justice votes, and a law gets the shiv The baffled President sings Hallelujah Hallelujah Hallelujah Hallelujah Hallelujah
    • #16
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    @Fredosphere
    Your health system was strong but you needed proof Your congressional majority through the roof Pelosi’s beauty in the moonlight overthrew you She tied you To a committee chair You signed the law–not that you’d care And from your lips she drew the Hallelujah. Hallelujah Hallelujah Hallelujah Hallelujah
    • #17
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    @Fredosphere
    We conservatives’ve been here before. I know this town, she’s Babylon’s whore. I used to live in peace before I knew you.Yeah I’ve seen your flag on the marble arch,We never expected our victory march,But Justice Kennedy’s got us all singing Hallelujah. Hallelujah Hallelujah Hallelujah Hallelujah
    • #18
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    @SouthernPessimist
    Trace Urdan: But it will make what will already be an incredibly divisive election even more so. The sole reason voters will give to vote for Obama will be to prevent a Republican from being in a position to nominate a Supreme Court Justice. For many, this would become a single-issue election, with the economy being an after-thought.

    The base will have been quite effectively rallied. · 4 minutes ago

    Edited 2 minutes ago

    Yep, another variation of the Republican War on Women’s reproductive rights. And of course their attempt to recreate Jim Crow laws.

    • #19
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    @PeterRobinson
    Fredösphere: Your health system was strong but you needed proof Your congressional majority through the roof Pelosi’s beauty in the moonlight overthrew you She tied you To a committee chair You signed the law–not that you’d care And from your lips she drew the Hallelujah. Hallelujah Hallelujah Hallelujah Hallelujah · 0 minutes ago

    A work of genius, Fredo.

    • #20
  21. Profile Photo Inactive
    @DiegoSunDevil

    So, if it’s struck down, Americans are going to vote for Democrats so they can pass another version of this disaster?  I don’t see that happening to a significant degree.  It will certainly energize the Democratic base, but it opens the door for a conservative plan to be tried, and people may be more willing to listen to a free market solution since ObamaCare has failed to deliver on many of it’s key selling points.

    • #21
  22. Profile Photo Coolidge
    @AmbulanceDriver

    We are seeing two very different views of the Constitution.

    For instance, in the transcripts, Justice Breyer indicated during yesterday’s arguments that government can force individuals to buy a cell phone.

    Justice Scalia indicated that if the mandate were to survive that the Government could force individuals to buy broccoli.

    One Justice supported the notion, the other did not.

    What we have is a partisan divide. If conventional wisdom is correct, there are four Justices who believe in expansive Federal power over the individual and four Justices who believe in the sovereignty of the individual.

    The decision, when rendered, will be of enormous consequence.

    If the mandate is upheld the good news would be that a newly elected Republican Admin and Congress could throw out ObamaCare AND mandate that every citizen buy a gun. :)

    • #22
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    @Palaeologus

    Scalia’s first hypothetical of the day:

    The consequence of your proposition, would Congress have enacted it without this provision, okay, that’s the consequence. That would mean that if we struck down nothing in this legislation but the — what’s it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay?

    When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.

    Man, I love that guy.

    • #23
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    @SeverelyLtd
    Troy Senik, Ed.:  If SCOTUS really does scrap the entire law, Obama will launch the biggest crusade against the federal judiciary since FDR, campaigning against them as another elite institution hellbent on obstructing the relief he is trying to bring to everyday Americans.

    Will this bring the disgruntled Democrats and left-leaning independents to life? Which ruling should we fear more? Is this why Obama pushed for SCOTUS to take this on pre-election? If the court approved ObamaCare, fine, he is vindicated. “More of this if you re-elect me!”

    If it’s struck down, he can demonize the cold-hearted Republicans and ask for another four years and a chance to tilt the court to the left. Launch a crusade, as you say, and energize the Party. If the ruling went against ObamaCare after the election, he wouldn’t be able to make hay with it.

    • #24
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    @JosephStanko
    Troy Senik, Ed.: 

    1. If SCOTUS really does scrap the entire law, Obama will launch the biggest crusade against the federal judiciary since FDR, campaigning against them as another elite institution hellbent on obstructing the relief he is trying to bring to everyday Americans.

    Is there a possibility that, seeing that they aren’t going to win the mandate argument, the liberal wing strikes a comprise deal to save the rest of the law?  Given what was said on Uncommon Knowledge about Chief Justice Roberts trying to make the Court less political, striking down the whole law 5-4 in an election year has to be his nightmare scenario.  

    What if he and the liberal justices wrote a majority opinion striking down the mandate but upholding the rest of the law?  Then you’d end up with a less political 9-0 ruling but on much narrower grounds leaving most of Obamacare intact.

    • #25
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    @dittoheadadt

    “…Justice Ruth Bader Ginsburg said the court should do a ‘salvage job’…”

    She must be senile.  She thinks she’s in the legislative branch.

    • #26
  27. Profile Photo Member
    @ShaneMcGuire
    Diane Ellis, Ed.: A little something to temper your optimism from SCOTUSblog:

    The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, butmay have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.  A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.

    22 minutes ago

    Wouldn’t this simply mean that they could strike the mandate and send down to the lower court the issue of what must be struck down with it? That seems like a fact intensive investigation, suited for a lower court.

    • #27
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    @ultravires
    Adam Freedman: Listening to Randy Barnett on a Federalist Society recap call.  He doesn’t share my pessimistic view of Kennedy’s question, but he also says that the LA Times reporter is over-interpreting this morning’s remarks.   Remain calm. · 44 minutes ago

    Adam, I am on that same line, and I actually just made a post pursuant to his answer of a question of mine.

    • #28
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    @ParisParamus

    (By “thing” I mean Obamacare; not the United States, and not Mitt Romney’s bid for the White House)

    • #29
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    @RobertPromm
    Peter Robinson

    Fredösphere: Oooooooooh. If Ginsburg used the word “salvage”, then even a doubter like me has to admit, the tea leaves are looking awfully friendly. · 2 minutes ago

    Fredo, I’m counting on you to compose the celebratory music.  Something a little like the final movement of Beethoven’s Ninth, perhaps? · 2 hours ago

    How about the Hallelujah Chorus!  Perhaps it would be Divine intervention.

    • #30

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