SCOTUS: Not Looking Good Based On Justices' Questions

[BlueDemKev]

4 of the 5 of the conservative justices (Thomas doesn't ask questions) were hurling questions at the Solicitor General Donald Verilli on the issue of the individual mandate leaving Congress limitless power to dictate anything it wants.

Most disturbing were the questions from Kennedy & Roberts...

Kennedy: This "changes the relationship of the federal government to the individual in a very fundamental way." He demanded to know how allowing the individual mandate to stand wouldn't leave Congress with unlimited power.

Roberts: "Once you're into interstate commerce and can regulate it, pretty much all bets are off."

Even if Kennedy can be persuaded to support the individual mandate, I can't see him joining the four liberal justices to uphold the law unless at least one of the other conservative judges join him.

[jenmito]

1. I just heard a very similar conclusion on MSNBC based on the questions of the conservative judges.

Pete Williams of MSNBC was inside the court and watched the whole thing.

[CAPHAVOC]

14. I hope they throw it out with the bathwater.

[WI_DEM]

2. not always necessarily true

[elleng]

3. Mistake to bet on what they'll do,

certainly from a 2 sentence 'quote.'

Has the Court released the audio from today's session already?

[Inuca]

6. I am sure they did not

abnd that the comments are based on info from people that are inside

[BlueDemKev]

16. Not yet.

Later today.

[elleng]

18. Thought so, but pretty quick;

yesterday was less than an hour, I think.

Radio in friend's house, where I'm located now, NOT user-friendly; can change VOLUME easily, but channel/station? Its a f'in mystery!

Hope friend doesn't un-friend me, for listening to the whole thing. Maybe he'll take a long walk!

[DefenseLawyer]

4. That would seem to also mean privatizing social security would be illegal

as would all the other harebrained privatization schemes that the wingnuts love. Of course the "intellectual" (HA!) Scalia has proven again and again that he will ignore precedent, even his own, to reach a result that matches his politics, so that probably won't be much of a deterrent to them in this case. That being said, it would certainly call into question the legality of any "privatized" plan in the future.

[Inuca]

5. I just saw two Ezra Klein re-tweets that scared me

Jonathan Cohn?@CitizenCohnReply
Retweet

Well, folks, I wasn't worried after oral arguments yesterday. I am today.


Retweeted by Ezra Klein




RT @SCOTUSblog: "Paul Clement gave the best argument I've ever heard. No real hard questions from the right. Mandate is in trouble."

[Inuca]

8. One more scare tweet

(I am at work, so can't follow much)

HuffPost Media?@HuffPostMediaReply


Jeffrey Toobin on CNN re health care: 'Based on what we've seen today, I think this law is in grave, grave trouble.'


Retweeted by Ezra Klein

The one very short word that describes how I feel about all this starts with a F

[jberryhill]

7. Figuring out where they are going based on oral argument is a fool's errand

You might as well read tea leaves.

An appellate judge who agrees with you is going to give you a harder time fleshing out your argument than one who disagrees with you. He's the one who is going to have to address those kinds of questions in the opinion he's fixing to write, edit or sign on to.

[DefenseLawyer]

11. I have left oral arguments in the 7th Circuit many times

after seeing the AUSA pummeled by the questioning but still knowing that it's a criminal appeal in the 7th Circuit and my chances of winning are slim to none.

[CAPHAVOC]

17. Where is the 7th Circuit?

I am interested in Criminal Appellate Law.

[elleng]

22. Chicago

and its a fine court to follow if you're interested in such.

[DefenseLawyer]

24. Chicago

The 7th covers Indiana, Illinois and Wisconsin. Along with the 4th Circuit, it's among the most brutal when it comes to criminal appeals.

[dems_rightnow]

12. Exactly so

You can't get too involved in that part.

[tabatha]

9. NickKristof

Nicholas Kristof ? @NickKristof
Lots of accounts from Supreme Court today that health care reform law may be in trouble. If so, we're all in trouble.

[Inuca]

25. He is right :-( n/t

[cbayer]

10. I came away with exactly the opposite impression after hearing Cokie Robert's

excellent summary on ATC last night.

We shall see.

[BlueDemKev]

13. That was last night--before the individual mandate was debated this morning....

[cbayer]

20. Well, then. I look forward to hearing her analysis later today.

[vi5]

15. Wow, what a shock...

Someone the Democrats put in charge of articulating and defending their position on a particular matter or legislative issue was wholly unprepared for the degree, breadth, and specificity of Republican questions and attacks despite having an incredible amount of time to prepare for and look at this issue from every angle?!?!?!?!

What an unprecedented turn of events!

[stevenleser]

21. Its not a 'Democrats' thing, its a lawyers thing. Yes, its surprising.

The lawyers on the Democratic side who argued Bush v. Gore were outstanding, the results notwithstanding.

We dont even know if the lawyer in the Health Care case arguing in its favor is a Democrat. Lawyers will argue either side regardless of their own ideology. It's not "Ohhh, a Democrat was incompetent", rather it's " a lawyer was incompetent".

[elleng]

23. Right, and thanks, its our JOB,

we are ADVOCATES.

[stevenleser]

26. Thanks Ellen!

[vi5]

29. We can advocate all we want....

We aren't being interviewed on tv.
We aren't being interviewed by newspapers.
We aren't having articles written about us and our signature policy acheivements.
We don't get to write large scale editorials in national news papers.
We can't call town halls and get large amounts of people to show up.

I can advocate until I'm blue in the face, my feet are bleeding, and my throat is dry from talking so much. It's still a drop in the bucket compared to what can be done and what should have been done between the passage of the ACA and this court case by the people whose job it is.

[vi5]

28. Who appoints the soliciter general?

I honestly don't know. I assumed that the person arguing in favor of the Democratic party's signature acheivement would at the very least be a Democrat. You're right, they could not be. But why would that be the case?

In any event, anyone who thinks that the messaging and marketing and salesmanship of the ACA after it was passed was good is sorely mistaken.

I shouldn't be doing more work in selling this thing and explaining it to people than the politicians with the access to tv screens and news shows and papers and interviews and town halls. And sometimes honestly that's how it feels.

Hell, I spend countless hours a week reading up on political stuff, and I have to dig deep to find and understand enough about this thing. To expect the average low information, cable news fed person to be able to or want to do that is just unrealistic.

[former9thward]

33. The soliciter general is appointed by the President.

[elleng]

34. Would violate the law to ask whether a Federal employee is Dem or Rep.

He's obligated to represent his client, the U.S., here the position of this Administration, to the best of his ability.

[vi5]

35. But he is appointed by the president, correct?

So then this is someone the President chose to represent and defend his positions legally to the best of his ability, correct?

My original point stands.

[vi5]

36. Who chose and appointed that lawyer?

Yes, in this case it's a lawyer, but my point still stands that if the accounts of his performance today are accurate (and admittedly none of us really know if they are) then that lawyer who was appointed to represent and defend the Democratic position is doing a poor job of representing and defending the Democratic position.

[Octafish]

19. Is there any doubt?

Before he was tapped for his lifetime gig, Chief Justice Roberts helped get the Iran-Contra felons off the hook for treason.

5-4? I'd LOL if not for all the death and destruction.

[sinkingfeeling]

27. Huh? We've been regulating interstate commerce for centuries.

[elleng]

32. Yes, and

there's frequently a question about whether a particular activity has an effect on interstate commerce to justify it being regulated by the Federal government; that's the issue here.

[Hugabear]

30. "Once you're into interstate commerce and can regulate it"...has Roberts even read the Constitution?

Pretty sure the Constitution gives Congress exactly that authority.

[elleng]

31. I'm sure he's read it.

As to interstate commerce, there's frequently a question about whether a particular activity has an effect on interstate commerce to justify it being regulated by the Federal government; that's the issue here.