Skip to comments.Left Shocked by Court Developments
Posted on 03/27/2012 1:13:49 PM PDT by Kaslin
RUSH: Grab sound bite two before we get to sound bites 23 and 24. This is last night. We'll do a little timeline here involving Jeff Toobin. Last night on Charlie Rose, CNN legal analyst Jeffrey Toobin -- who, by the way, for those of you old enough to remember, is the son of former NBC News reporter Marlene Sanders. He wrote a big book after the O.J. trial, and he's been at CNN for quite a while. And Charlie Rose said, Jeffrey Toobin, "How big a deal is this Obamacare case at the Supreme Court?"
TOOBIN: Epic! Awesome! Enormous! Huge!
TOOBIN: This is the biggest case involving the power of the federal government since the New Deal. And if this law is struck down, the federal government is gonna look very different the next day. And lots of plans and lots existing programs are in jeopardy. So, I mean, as big as you think this case is, it's actually bigger.
RUSH: Last night, Jeffrey Toobin accurately describes the size and scope of Obamacare. Today, it's Politico "breaking news," but we've got sound bites from CNN. Toobin, quote: "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... [I]f I had to bet today, Wolf, I would bet that this court is going to strike down the individual mandate." Tom Goldstein, attorney and cofounder, center-left SCOTUS blog: "The individual mandate is in trouble, significant trouble." Los Angeles Times' Noam Levey: "Tuesday's arguments may signal trouble for the mandate, widely seen as a cornerstone of the law's program for achieving universal health care coverage for the first time in the nation's history."
Politico breaking news: "The conservative justices and potential swing vote Anthony Kennedy raised concerns Tuesday that forcing Americans to buy health insurance would open the door to other intrusive requirements from the federal government..." What was so hard to predict about this? This goes right to my point. What's so hard to predict that this thing is unconstitutional? It is unconstitutional. And a Civics 101 student in junior high, after having the Constitution explained to them, would know this. And here come these legal experts: "There's no way that justices are gonna strike this down! There ain't no way," and then after one day of oral arguments, these same experts (probably just as qualified as the economic experts at the Associated Press) say: My God, these justices, they don't like the individual mandate! We're in big trouble.
Here's Jeff Toobin. He's on CNN this afternoon. The coanchor, Ashleigh Banfield, said, "Tell me everything, Jeff. What happened today?"
TOOBIN: This was a train wreck for the Obama administration. This law looks like it's gonna be struck down. Justice Kennedy, the swing vote, was enormously skeptical. Every comment Kennedy made -- uh, at least that I heard -- was skeptical of the law. The wild card in this argument was, uh, Chief Justice Roberts. Chief Justice Roberts actually asked a lot of hard questions. Roberts seemed like a much more likely vote to uphold the law than Kennedy was.
RUSH: See, he had to find something positive after saying today "was a train wreck for the Obama administration." And again he said, "I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... this court is going to strike down the individual mandate." Wolf Blitzer then weighed in...
BLITZER: This is really huge! Uh, uh, uh, what you're saying -- and you're an authority on the US Supreme Court. You've written the major book on the current Supreme Court -- uh, The Nine. So you fully understand. But just because a justice is asking tough questions, let's say of the government lawyer -- Mr. Verrilli in this case -- that doesn't necessarily mean that that justice is gonna come down on the other side. Isn't that right?
TOOBIN: It's true, but it's not very true, Wolf. Yes, it is true that sometimes we're surprised by the justices' votes after hearing their comments at oral argument. Most of the time -- and it's not all the time, but most of the time -- the questions that the justices ask at oral argument are very good predictors of how they're gonna vote.
RUSH: So the left is in panic! Wolf Blitzer is in panic, looking for a life preserver from Jeff Toobin, who didn't give him one. And they're shocked! This is what's funny. They are shocked. We aren't. Well, we might be because we're surprised that the Constitution is actually being adhered to here, or appears to be.
RUSH: Ladies and gentlemen, I want you to temper your expectations on this. This is just oral argument, and we're nowhere near the vote on this thing and we really don't know how this is gonna go. All we have right now is palpable fear on the left. ... This fascinates me, all of this shock and surprise on the left. The media, court watchers, leftist legal beagles. They are in a state of shock, a legitimate state of shock, folks. They really believed this was gonna sail through. And we have to always keep in mind how relatively young most of these people are, and thus how they've been educated. They didn't get Constitution 101 like I did. They have been taught that the Constitution's a flawed document that needs to be changed whenever it can be.
And this represents the greatest opportunity to do that that they have all ever had. The very fact that Obamacare became law against the objection of a majority of the American people -- and the way it became law, basically under cover of darkness with every legislative trick under the sun being tried -- didn't matter. It didn't matter that it might be illegal. It didn't matter that it might be unconstitutional, because that's precisely what this was about: Making it constitutional by virtue of changing the Constitution and using this law to do it. Then all of a sudden the oral arguments come up today, and the four conservative justices and the so-called swing vote, Anthony Kennedy, all have problems with the mandate.
And they're literally shocked, A, that everybody doesn't have the same worldview of this that they do; and, B, that there is any objection to it at all. Remember for these people the government is the end. It's the be-all, end-all. Government is the final authority. Government is where everything important happens and every important decision happens for everybody. But it didn't go that way today in the case of oral arguments and so now they're scratching their heads and they're genuinely surprised. Jeffrey Toobin is genuinely surprised. The CNN legal guy predicted this would sail through, and they probably were looking at this court's actions on campaign finance law, McCain-Feingold. "Well, if that sailed through, this will."
So where we are with this is the left now blogging incessantly their fears and their hopes at the same time. There is a left-wing blog called SCOTUSblog, Supreme Court of the United States. And this is a very relevant post on that blog: "Towards the end of the argument the most important question was Justice Kennedys. After pressing the government with great questions, Kennedy raised the possibility that the plaintiffs [i.e., the government] were right that the mandate was a unique effort to force people into commerce to subsidize health insurance, but the insurance market may be unique enough to justify that unusual treatment."
So they take all of Kennedy's questioning here, which indicated to Toobin: This thing's dead, this thing is a "train wreck." One question by Kennedy at the end is now given them hope that he might see this as so unique that he would vote for the mandate. A reporter at the Huffing and Puffington Post is saying that it's, quote, "almost entirely unequivocal that a majority of the court thinks Obamacare is unconstitutional." They are scared to death. Lyle Denniston used to be the court reporter for the Baltimore Sun. He posts this:
"If Justice Anthony M. Kennedy can locate a limiting principle in the federal governments defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him," and therefore give us a huge winning majority. "But if [Kennedy] does not, the mandate is gone. That is where Tuesdays argument wound up -- with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandates savior." A lot of these blogs are being critical of the solicitor general, the government's lawyer, Mr. "Virility."
One blog is saying: "I can't believe how poorly prepared this guy was on the mandate! I can't believe they sent him up there and he had no idea how to answer these very obvious questions on the mandate." So apparently the government's lawyer didn't do a good job. The left can't believe he wasn't prepared any better. Well, how do you defend the indefensible? What is this guy gonna say? When that burial analogy comes up, he's dead. When the broccoli analogy comes up, he's dead. If you're up arguing before the Supreme Court that the government has the right to require us to buy health insurance, then why not burial insurance? Why not broccoli?
This guy had no answer for that other than a bunch of gobbledygook. And all of his supporters watching this know what a poor job he did, and so now they're worried, and they've just go on a little carrot. Anthony Kennedy gave 'em a little carrot dangling there at the far end of the mine. It's right down there next to the canary. He might find a way. This situation is so unique and we're talking about health care, so maybe this could be okay. That's what they're desperately hoping. But their instincts tell them that it was a "train wreck" today. And I must tell you, I still find it... I don't know, I guess I shouldn't, 'cause I know how they were educated (which was poorly). I'm still struck by the fact that they're surprised, that they're shocked.
What world do they live in?
This could not have been the first day in their lives that they've heard these objections to the mandate. But what if it is? What if they live in such a close-knit circle and they hang around only with each other? What if it actually was the first time they've heard these objections? That can't be! These objections, these arguments, against the mandate have been made throughout the media everywhere. So I guess they just locked in on the idea that it doesn't have a prayer of losing. But like so much of liberalism, and like so many liberals, they live in their cloistered world of the faculty lounge. They sit around and they talk theory all day. They don't understand dynamism. Everything is static to them.
And then they get confronted with reality one day and it's like a cold shower or a slap upside the head and they are bewildered. And it still amazes me that people who are reputed to be so intelligent and so smart can be so surprised when they hear arguments -- logical arguments -- that make it obvious this is unconstitutional. But, again, I fall back on something we must never forget, and that is: This is not about health care and it's not about the mandate per se. It's about changing the Constitution. Not piecemeal with this one. This is huge. If you have it codified as the law of the land that the government can make you buy something? Then, my friends, the Constitution has finally been defeated -- and that's what they can taste. In fact, it's in their grasp, but it's a little slippery and they can't hold onto it.
But it's right there.
RUSH: Wolf Blitzer was in hysterics moment ago on CNN. He had the congressional correspondent Kate Bolduan on. They had this exchange. We already heard Toobin. Blitzer is beside himself with what happened today on oral arguments.
BLITZER: Kate, you were inside the courtroom! The solicitor general, uh, Donald Verrilli, uh, was he sort of stumbling? Did he not have the right answers? Uh, did he seem unprepared and overly nervous in responding to the conservative justices' tough questioning?
BOLDUAN: It's hard to get into his mind. But I can say, if you compare it to yesterday, he did appear to stumble more; almost seem apologetic for some of the answers that he was giving.
RUSH: Yeah. Yeah. So now it's time to dump on "Virility" here, the government lawyer. Blitzer: "[W]as he sort of stumbling? Did he not have the right answers? Did he seen unprepared...?" Wolf, you go defend this law up there and see how you do. There isn't anybody who can! Obama's not even trying to defend it. Pelosi's only defense is, "What do you mean 'unconstitutional'? Don't be silly!" Nobody can defend this. Nobody. It isn't constitutional.
BEWARE reading ANYTHING into questions by the Justices. I’ve argued before SCOTUS, the VA Sup Ct and several appellate courts and questions don’t mean a whole lot. In fact, Justices will frequently ask questions the opposite of what they are inclined to do to force you to make their argument.
Judicial questions are for one purpose ... to spur discussion. Many times a Judge would grill me on an issue as though he didn’t buy it only to rule in my favor.
Anyone who tells you they can read the tea leaves on this one, or that there are even tea leaves to read, have know idea about what they speak.
All we can do is sit back and wait.
If Obamacare is unconstitutional, then what of Medicare?
I thought the eminent domain law would never be thrown out by the Supremes in the Kelo case, based upon their comments in the public hearing. I pray the justices don’t do the same in the Obamacare law and uphold it.
If I were a conservative, and I am, I wouldnt get my hopes up. Here is a take that has not been mentioned yet.
From what I understand the Justices dont dicsuss the case after theyve heard arguments. They go back to their chambers and write their opinions and vote. Thats not a rule, that is simply how the process has evolved.
Hoewever, the Justices are free to query one another and conversate with one another and there is no prohibition against lobbying another Jusice.
Keeping that in mind, now remember this: obama has put two women on that court and he picked them becasue they are as radical as he is.
I believe that Sotomayer is just as much as a radical activist as obama with a union thug gene deep in her genome.
I believe that Sotomayer will try to sway other Justices behind closed doors. I believe that she will be in touch with the obama adminstration giving them a blow by blow on how the decision is coming along. In short she is a mole.
I believe that if the opinion doesnt go her way that she will try to fiddle with the final text in order to achieve her end.
Look at her track record if you dont believe that sotomayer is capable of that. She is a non apologetic racist who will have her way and do anything to get her way.
Sotomayer is key, someone must keep an eye on her and keep her in check. (Kind of reminds me of John Carpenters The Thing with Kirt Russel)
LOL There ya go! I feel your pain, my friend. I’ve been shocked more than once. Sometimes it makes you wonder if you have a clue, doesn’t it?
No shock needed until this is over. We’re a long way from being finished on this.
The more I read of the withering questions of Kennedy, the more I feel the fix is in.
What gives me hope, however, is that when the grilling came the guy could not give logical answers.
If the Justices were trying to help him make his argument thru the questions it didn't seem to be happening.
No Purchase is forced in Medicare, part B is optional, Federal Retiree’s and any one keeping their Major Medical have Medicare as a secondary.
**** Kennedy raised the possibility that the plaintiffs [i.e., the government] were right that the mandate was a unique effort to force people into commerce to subsidize health insurance, but the insurance market may be unique enough to justify that unusual treatment.” ****
That’s all you need to know. Slam dunk, done. They are going to tie themselves in knots to uphold this law.
If it were a fair and just world, any Supreme Court Justice who would find this law constitutional would be dismissed from his or her duties immediately.
Are you a famous attorney? Impressive to hear you have argued before the U.S. Supreme Court. Thanks for your unique insights into what’s going on.
You are very sweet. Thank you. =)
Nah. Notorious maybe, but not famous. hehehehehehe Have just been fortunate to argue a good number of Constitutional issues in criminal cases before the Appellate Courts including SCOTUS.
Very true. Didn’t seem he argued it well. A bit surprising. We all have people grill us before we make these arguments before the Court.
Yet Kennedy made the argument for them at the end.
You have made an important point. It’s always good to read an opinion grounded in years of experience.
Two things I never bet on; the outcome of an argument based on questions posed by judges and the outcome of a trial based on jurors’ questions.
I listened to a video of Clarence Thomas visiting some college recently. He said they do a lot of research prior to the oral argument & mostly have made up their minds about the issue. It’s possible that oral arguments can change their perspective, but only rarely.
We’ve had enough bad decisions out of SCOTUS that I haven’t got my hopes up.
Sotomayor is an issue, but she is NOT key; Kagan is key. As Solicitor General, Kagan prepared all the defense arguments for the government on ObamaCare. By rights, she should have recused herself (and, an ETHICAL justice would have) to avoid any appearance of bias but, as we are aware, she hasn't.
So, Kagan is the one we have to watch to see if she tries to sway the Court her way. Because she has all of the arguments lined up to defend ObamaCare against the very hearing it is receiving in the SCOTUS now, she is the most dangerous element on the COURT.
The leftists are going to put on a big show of being “thoughtful and then they are going to Roe v Wade this thing.
Ask a liberal: If the government can force you to buy health insurance, can the government force you to buy a firearm?
Right now, we are in what we used to call in the Navy, “standby to standby mode”. The fat lady isn’t expected to sing until sometime in June and any popping of champagne corks before then on the basis of questions currently being asked is premature, to say the least.
Certainly, the majority of Americans hope that the SCOTUS will overturn the law. After that, there is no telling how Congress and the administration will react. IMO, Reed and the Dems in the Senate will try to ram it through and pass it again just to prove that they can.
However, things will be very different in the House. And, the effect of ObamaCare on zero’s reelection campaign could truly be fascinating to watch. If it is overturned, will he blame Bush? Congressional Republicans? Conservatives on the Court? Tea Partiers? Three-legged Martian Furgobats??
Whatever, we know that zero will NOT accept that Americans don’t want his grand entrance into socialized medicine and someone - ANYONE but him - must take the blame if it is overturned. It just remains to be seen who.
if things go well in November, Kagan needs to be impeached from the court on ethical grounds! If the USSC is to maintain any sort of future integrity she has to go! This is a lesson that needs to be hammered home to any future presidents who wish to appoint such a blatant “ringer” as Kagan.
If Roberts is incapable of controlling his court... he should resign. I have NO faith in any of those black robes... except Clarence Thomas. I not only respect him, I think that he has the most brilliant mind of any of the other Justices... as a matter of fact... I think that he should be Chief Justice.
Medicare in know way resembles Obamacare. Medicare is not mandatory. Seniors can either use it or not. When a Senior retires he/she is presented with the option to either pay for medicare or not to pay for it. Many Seniors, those with money, choose not to do so. Under Bozocare no one has a choice. You MUST buy insurance. The US government has no authority to require us to buy anything.
You give me some hope for an issue I am dealing with in Superior Court (I’m petitioner, not an attorney) that even the highly skilled can be cut off at the knees. I am sure I will get prosthesis bills from my attorney at some point. She (meaning me) is getting smoked. Barbequed.
Our Founding Fathers would have loaded their muskets and stormed the government a long time ago. They would be outraged at what this country has become.
I read the transcripts from yesterday and today and they keep going back to one major issue:
If Congress can regulate commerce by doing this, then they can literally do anything at all.
That throws the idea of a federal government of limited, enumerated powers out the window.
One characteristic of this set of nine justices is that they tend to make narrowly defined decisions, especially with hot topics like this one.
Justice Kennedy’s questions seem to support the idea that he is trying to form a narrow decision.
The bigger question of “can the government mandate individuals to make purchases” will not be answered by this court.
Look for this court to refine what is a tax and what isn’t a tax, and perhaps a refinement of interstate commerce applicability.
I predict it’ll be thrown out, 6-3 (Ginsburg and Kennedy joining the conservative four). It’ll be thrown out on the basis that it cannot be a tax because (by definition) it cannot generate revenue, and a penalty cannot be used to regulate interstate commerce. Supporting arguments will include such items as: other means of addressing medical costs (such as a direct tax) were not persued.
I completely agree with you.
Please read this post and say what you think:
So let's say the SC rules this law Constitutional....Once conservatives get all three branches of government, WHAT CAN WE FORCE DOWN THE THROATS OF LIBERALS? Buy a Gun...mandate contributions to the church of your choice (for the spiritual "health of the nation")...
Insert your own ideas, what's good for the goose is good for the gander
” If Obamacare is unconstitutional, then what of Medicare? “
Of course you’re right. It is all unconstitutional, but these programs were meant to buy the votes for socialism.
These entitlements and elections they won have given them the time necessary to build the public school system into a manufacturer of more little socialist thinkers from the grades up through academia.
The job has been done rather nicely, and we cooperate as useful idiots by trundling our children off to these schools every morning at 7:30 AM, with abandon.
Until this is reversed we are looking at another generation of the same and more.
EVERYONE SHOULD HOLD THEIR OWN APPLAUSE/BOOS UNTIL “THE FAT LADY SINGS” (UNTIL THE ACTUAL RULING)
That’s when I learned not to trust the Supremes’ questions.
I didn't catch that.
That is the bottom line. Forget all of the posturing, the speculation, the questioning (even by the Justices). If this law passes muster, then our republic is finished - we will live in a dictatorship at the whim of those in Congress and the White House.
Keep in mind that they don't have to do something like this too many times, and they will have succeeded in tying up most or all of a person's discretionary income. Health insurance and health care is a big budget item, and if this law stands it'll now be controlled by the government. Add in "environmental concerns" and you'll have government CHOOSING YOUR CAR FOR YOU - oh, sure, it'll be challenged, but it'll lose based on this case. Ditto for housing and college - the do-gooder fascists will come up with some excuse related to "the common good" for any mandate, and then will use this case as precedent.
This case IS the line in the sand. Either the law is struck down and we still retain some of our liberties with a chance to restore more in the future, or it is not and we retain none and say goodbye to the America that we have loved for generations. It is that simple.
BTW, for those who won't support a Republican candidate who is not of your choosing, think about Obama appointing another 1, 2 or 3 justices (and, especially, replacing Thomas, Alito or Scalia). Think about the hundreds of District and Appeals Court judges he will appoint in the next 4 years. If Obama gets to do that, regardless of how this case turns out, our republic is dead. This election is THAT important - and sometimes the lesser of 2 evils is the best choice, because if it isn't chosen then the greater evil wins. Obama is an extremely radical opponent of limited government and of American exceptionalism. He will accelerate the tearing down of this country in a 2nd term - so that term must not come about. I am NOT a Romney supporter by any stretch of the imagination, and I am PLENTY pissed off at what the Republican establishment has done over the past few decades, but I'll vote for the Republican candidate in November regardless - because the alternative is our nation's destruction.
I'll bet they've already chartered the buses.
It was unmistakably contained in Alito's line of questioning on burial insurance. Alito's metaphor is easily understood as signaling his disgust at the idea of penultimately giving the Commerce Clause vis divina over every other word in the Constitution, particularly those rather important Articles regarding separation of powers. It's a short step to render drawing (or re-drawing) that bright line.
Even the choice of wording was pointed. In fact, Alito's questioning was so composed, the majority opinion is already written in his head, and probably Nino's too. I wouldn't be a bit surprised if Roberts hands the majority opinion to Alito so Roberts and Kennedy can disagree in part if necessary.
In the long run, this will just start them seething and plotting an insidious caper to seize control of the Court (just like their Secretaries of State Project after the 2000 election)
In reading the transcript, there are many references to the government forcing people to buy broccoli.
Recall President Bush declaring “I am President of the United States and I don’t have to eat my broccoli!” Funny how the Supreme Court is now asking, in earnest, why the government should not be able to force someone to buy, and presumably eat, broccoli.
They are aiming at the good conscience of Kennedy. We shall see if he has the fortitude to stand up to it.
It’s disturbing that a SCOTUS Justice is so powerful and it is uncomfortable to think how he must view his power. I wonder if enjoys the power, if he enjoys being the deciding justice on this.
If Justice Kennedy votes against, he will be remembered for not much. If he votes for, all of history will remember him. If he votes against, he will have denied a certain segment of people the ‘right’ to healthcare. If he votes against, he could be blamed for people dying.
And as all the justices are so insulated, there’s not much of a chance that they will be disturbed by public opinion although some pundits have said the opposite.
The commentary has him grilling the Obama lawyer intensely and then holding a carrot out at the end. Could it be that all the while he was grilling this lawyer, that he was searching for the characterization argument dealing with ‘uniqueness’? And then at the end, the ‘professor’ gave the ‘student’ a glimpse of the correct answer.
My own view is that it won’t matter much on how Kennedy votes on the individual mandate. Please read and comment on the post of this link:
Old old story. The judge says the words one way, but then decides the other way.
if this is upheld, GOP needs to be ready to go the next day with a bill requiring every American to buy a firearm and a subscription to Rush 24/7.
**** Kennedy raised the possibility that the plaintiffs [i.e., the government] were right that the mandate was a unique effort to force people into commerce to subsidize health insurance, but the insurance market may be unique enough to justify that unusual treatment. ****
The court ruled that such an arrest for a misdemeanor that is punishable only by a fine does not constitute an unreasonable seizure under the Fourth Amendment.