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
“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.”
So what? Behold the travesty of legal thinking. Here’s a guy obviously very skeptical of the government’s arguments generally, but then he goes and gets himself all tangled up in the “matters of degree” that make up most of life’s questions. Firstly, health insurance is absolutely not unique in the effect of people not buying. That’s called demand, and there’s a law for it—along with supply—that holds true for every market.
As for the youth in particular having special impact on the insurance industry via their non-purchase, give me a break. Young people also habitually fail to buy Centrum Silver, Depends, and Worthers Originals. Does that make it a concern of the federal government? Only because not enough agitprop agents have made a cause of it yet.
Nevermind all that, however. Let me grant that healthcare is special. Let me grant that people not buying insurance has no analogue anywhere in the U.S. economy. Again I ask: so what? What should a SCOTUS justice care? What does any of this have to do with the Constitution? The feds have the enumerated power to regulate interstate commerce; I do not recall a clause along the lines of: “Congress shall regulate the non-purchase of commodities for industries wherein young people come close to affecting prices.”
Seriously, where does this stuff come from?
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.
Hence the term anal-yst.
“So Do I. But this is FR, the hangout of the nattering nabobs of negativism. :)”
Well, I hope a few of them were listening to the audio of the arguments. There are things you can’t tell from a transcript like tone of voice. To me, Justice Kennedy seemed a bit impatient toward the solicitor general, and interrupted his arguments more than once. To me, it made the Government’s arguments seem weak. As I said before, I’m cautiously optimistic.
We can liken the government’s notion of the young and their responsibility to overpay for health care in order to make it cheaper for older folks, to life insurance. Why is it not similarly a good idea to have the young be forced to buy unneeded life policies to make life policies cheaper for those closer to their end? After all, regarding life insurance, most don’t buy it until they perceive a benefit in having such an expense.
We all know this bill is not Constitutional. If they say it is, then the country is over.
The US is no longer a free nation.
i agree. the men in black robes will grant more power to the federal government and the commoners must accept their divine ruling.
If what you say is true... neither kennedy or roberts deserves to sit on that bench... I saw the Robert’s hearing... I listened to his every word... he will also be a liar if you are correct. You know what scares me? I think that you may very well be correct.
What worries me is that he’s looking at it as about “some hypothetical young person increasing insurance costs “
when the argument is about “some hypothetical young person being forced to contribute to reduce other’s insurance costs “.
The government wants to require them to pay because they are such profitable insurance risks and that profit is going to be used to reduce medicare and medicaid costs.
The media has hid the fact that Obamacare is a system to force the young to contribute more towards older people’s healthcare and I hoped and expected that to be prominent in this hearing.
Kennedy is the lone liberal on the court, I can’t ever figure him out.
But any sign his heart is ‘bleeding’ is a bad sign.
“LOL. What the hell qualifies you as an analyst of SCOTUS? Opinions are like a##holes, everyone has one.”
That would be 25 years of legal experience including appellate argument.
However, no one said you have to accept my opinion, I merely showed you Kennedy’s two strongest comments and he said very little else.
The folks here who listened to the arguments and were cheering understandably were cheering Scalia, Roberts, Alito and also Kennedy’s first statement above.
Thomas doesn’t say anything but he’s fine.
I don’t believe Souter spoke but the libs all fought for Obamacare.
Kennedy only made two big statements, more comments than questions. In the second one above he expressed concern that the uninsured young person is close to participating in the commerce of health care/ health insurance, in a way that is unique to the medical industry.
Kennedy used an analysis related to the law of torts in both comments, which has zero to do with this case except in a very conceptual way. So his vote will come down to whether he decides the uninsured really “proximately” participate in the industry in a unique way which pernits Congress to regulate their behavior.
I have no idea which way Kennedy will vote.
As to opinions and a**h***s, if you keep your head out of one, you may be able to evaluate the other.
One man can now influence the course of Amrica’s future.
Is Kennedy now our KING?
I think you’re right. Kennedy could go, but I think Scalia would jump ship before Roberts.
Frankly, at this point I hope they uphold it.
Consider: it's struck down and the libs go crazy. It gives 'bam the one single thing he lacks this go round: an issue.
If they uphold the law, it will energize the Republicans and sway the fence sitters our way.
I can't help but wonder if this wasn't a set up all along; pass a bill knowing it would be struck down in order to exploit it in the next election.
I wish this wasn't possible, but I'm seeing you can never underestimate the stupidity of the electorate.
Liberals can hardly exploit Obamacare since polls are clearly showing it is not popular. Surprisingly Romneycare polls in Massachusetts show it is popular. That explains why voters have not rejected Romneycare by defeating politicians who are for it.
I doubt Souter spoke either since he retired almost three years ago. ;)
Just giving you a hard time. Thanks for your opinion and insight.
Exactly. Justice Kennedy knows he is the swing vote and it has gone to head and ego. So his critical line of questioning today is designed to give him cover when he screws the American people and our Constitution. Just giving you his possible thinking...anything can happen. I put nothing past these black robed bi##hes. I respect maybe three of them
Liberals are in a panic,
Good one, thank you. You’re right all 4 liberal justices spoke.
I am always suspect of people who engage in hubris when they decide to post a vainity. Knock yourself out.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.