Skip to comments.Don't Count On Justice Kennedy (Based On His Comments Today)
Posted on 03/27/2012 3:32:49 PM PDT by Williams
Just finished reading the transcripts of today's oral arguments. I know everyone is saying it was a disaster for the Obamacare mandate. It is clear from the transcript that Justice Kennedy is the swing vote.
He expressed both concern and sympathy for the government's argument. His two most emphatic comments are below. Based on these I would NOT count on which way he will rule.
First, this is from Kennedy's questioning of the Solicitor General who was defending Obamacare:
JUSTICE KENNEDY: "But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way."
That was great, however in questioning the respondents who are opposing Obamcare, and specifically on the point of whether Obamacare really forces anyone into commerce, Justice Kennedy said:
JUSTICE KENNEDY: "I agree I agree that that's what's happening here. (Congress chose to regulate a percentage of uninsureds to get leverage on all unisureds rather than to regulate those who default on paying their health care provider) MR. CARVIN: Okay.
JUSTICE KENNEDY: "And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets stipulate two markets 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."
As I read the transcript, Mr. Carvin was taken aback and not sure if Kennedy had just come very close to accepting the government's argument. Not wanting to assume either way and Kennedy's vote being so crucial, Carvin was at a loss for a moment or two.
Based on the above, Kennedy has expressed BOTH grave concern about expanding the commerce clause, AND some acceptance of the government's argument that this really isn't forcing anyone into commerce.
Full Transcripts start here: http://www.politico.com/news/stories/0312/74537.html
I hope that somewhere in this argument is the stated the fact that because a person(s) does not have insurance that he/she/ is denied medical care.
I heard that Justice Roberts’ questions indicated he might not be voting against the mandate.
So I get a job for the summer. The idea that the employee has to give me health insurance or get fined....guess what...He's not going to hire me.
Here's the clincher. I'm exempt when I'm working for myself because I make so little. If I work for someone, he pays??
This case is about the Commerce Clause, not whether “health insurance” is “important” or not.
If Kennedy is actually interpreting the Constitution, rather than just a blesser of whatever Congress says is “good public policy”, he has no choice but to strike down the Mandate.
Kennedy has subsituted his personal preferences in the past. He better not this time.
I was about to eat dinner but this news made me lose my appetite.
If Justice Roberts is a constitutionalist, he has to strike down the mandate.
If he is yet another government supremacist, he can vote to uphold it, in which case his name is legal mud in the history books.
I read the entire transcript. I don’t think any conservative vote is in question, except Kennedy’s.
The aggressive questioning against Obamacare didn’t come from Kennedy. He didn’t say that much and seemed to make two main points, each potentially going the opposite way.
Or that every person who gets healthcare - without having insurance- is going to stiff the provider.
I agree, you can’t trust Kennedy, he’s always seen as the “justice in the middle” and will try to find some way to cut the baby here.
What gets me is USSC political hack judges are allowed to make straw man arguments instead of doing their effen job of making sure laws passed by congress are allowed by the Constitution.
Kennedy’s concern about some hypothetical young person increasing insurance costs is NOT A CONSTITUTIONAL argument. Either the Constitution allows the Federal Government to force us to buy insurance or it does not. I does not matter one iota if then net result is good or bad in the eyes of government as if it were bad the only way to resolve the issue is to AMEND the Constitution not just bend it because it makes you feel better. Unfortunately most of those pieces of crap on the USSC are ignorant of this fact or don’t give a damn and will continue to use a judicial activist position to modify the Constitution without using the ONLY method which is Constitutional and that is the amendment process.
I listened to most of the arguments on cspan radio, on XM. I came away with a different feeling, and wanted to loudly applaud in my car a few times. I feel cautiously optimistic personally.
I listen to Court arguments all the time. Questioning does not always indicate the way they vote.
Supreme Court Justices, at least the good ones, have a habit of picking apart both sides. They’re not always asking questions to make a point — as hack Congressmen do — they’re asking to hear the arguments.
I think that the justices totally know how they are voting, and they’re putting on a show, to show how “seriously they considered it from all sides” before shoving it down our throats.
I was immediately struck by this statement and had to wonder if Justice Alito is a fan of Mark Steyn. Steyn has been saying this exact thing since they first threw this monstrous bill on the table.
I sure hope I am wrong, but my guess is the court will uphold the individual mandate and Obamacare. Asking 4 conservatives and as squish to overrule something this big that has passed through both the Legislative and Executive branches is going to be tough. They may all know it is a bad, bad idea - but I suspect that Kennedy and perhaps Roberts will not want the courts to trump the elected branches of government. They may also believe that the alternative to the individual mandate is pure single payer socialized medicine.
Until Kate Smith sings..all we can do is pray.
LOL. What the hell qualifies you as an analyst of SCOTUS? Opinions are like a##holes, everyone has one.