Replies

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?

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.

A very telling fact that bodes ill here is Kagen did not recuse. That makes one think it’s dog and pony show from the beginning.

We have had decades of the Supremes ignoring major parts of the Constitution and forcing the term “the People” into the Commerce clause. When did we pass an Amendment authorizing a 2nd Prohibition?

The politics of murder.

I’ve gone beyond shock to total rage.

I have never had oral argument to an appellate court, but I have done many appeals and made constitutional arguments to the trial court.
You guys speak the truth about using questions to predict outcomes.
As a long time Supreme Court watcher, I want to make this note as well.
The justices on the Supreme court are in a unique position for very obvious reasons, and some of that uniqueness explains why it is not particularly useful to compare questioning by other appellate courts to draw parallels with the Supreme Court.
For instance, SCOTUS does not have to lay out a record to protect their ruling from reversal from a higher court.
The “questions” in oral argument at SCOTUS serve multiple purposes.
You have justices like Scalia and Breyer who wear their emotions and thoughts right on their sleeves. Of course there is Thomas who has his mind made up before the arguments based on the Constitution (God bless him) and the briefs he has reviewed.
Then there is the unique blend of Kennedy and Roberts. I have no proof of this, so I admittedly am speculating here.
Kennedy and Scalia have a strange relationship to say the least. Kennedy is not wowed by Scalia’s arguments and analysis after all these years together on the bench. He knows what Scalia thinks before he opens his mouth. And he is not going to be persuaded by him.
Roberts on the other hand came in knowing full well what kind of court he was dealing with.
He is under no delusions that the 4 lefties are what they are. They won't change. So he has to work the diplomatic angle with Kennedy. My understanding is that Kennedy very much admires and respects Roberts. If the Chief were to come in with both barrels going after the government in Scalia like fashion, Kennedy would likely tune him out.
On the other hand, if Roberts appears “open minded, then Kennedy will listen more carefully to what the chief has to say during oral arguments, and more importantly at lunch one day after oral arguments.
Justices firmly rooted in their judicial philosophy are not worth lobbying. And that leaves Kennedy and his title of “swing voter”.
I believe that Roberts is using his perceived swing vote status in this case to keep Kennedy on the reservation. This diplomatic effort by Roberts is what sets him apart from the beloved late Chief Justice Rehnquist. The late Chief did not give a hoot about lobbying for votes. Scalia tried, but he could often not get a foot in the door.
I say all this to conclude that Roberts is a vote against bozocare, and his questions were designed to show Kennedy that he could be trusted. He and the other conservatives also used their questioning to show that the government's position is truly indefensible.
I feel much better about our chances at SCOTUS on this case then I did a week ago. That is for sure.
The big question is what kind of corruption, arm twisting, blackmail, extortion, etc. will be going on behind the scenes. I have no doubt either Kagan or Sotomayor will leak the vote to the white house. If I were the Chief I would likely vote with the four liberals in conference. That way misinformation gets to the white house. Then I would switch the day before it is released, and join the new 5-4 majority, leaving the former majority opinion as the dissent. Just a thought.