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
You can be suspect, I posted this because I read the transcripts and realized Kennedy ended up making a statement that wasn’t helpful. I pointed this out because everyone is cheering the conventional wisdom that Obamacare went down in flames today. Maybe it did.
You don’t have to have insurance...you could pay cash.
How can they insist that you pay for something you may not need. Doesn’t matter if the vast majority uses insurance, you are making everyone pay whether they need it or not.
I listened to the debate and read the transcripts. It all comes down to Kennedy and we don’t know how he will vote. Your vainity contributes nothing to that dialogue. Just another uninformed opinion.
I like your twisted logic.
Thanks for your vanity post that other freepers are way too hard on. I am not a lawyer and agree with your take
Anyone notice how all discussion of recusal (which was such a hot topic for awhile) by either Kagan or Thomas just went poof and disappeared?
(BTW, Kagan definitely should’ve recused herself - Thomas, not so much - imo.)
Likewise, like you, I'm afraid the fix is in, and they're already spent 100's of millions to put the beaurocracy in place to implement Socialized Medicine, and, like the Usurper being in Office for 3 years now and no one will challenge the Fraud and Ineligibility issues, they would not dare to un-do what is already in place, as evidenced by all the Republicans backing off Repeal of Obamacare. It's a done deal, I'm afraid.
You’re not being very nice. I reprinted some Kennedy specific comments so people would be aware. I’m really sorry that bothers you.
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.
Kennedy is desparately searching for some ‘limiting principle’ to carve out health care as a unique situation that would not give the government broad mandate powers in other areas, but of course, that cannot work. The government would use the mandate as a precedent and claim that it must mandate an action in another industry on the grounds that the other industry is unique also.
So if wealthy people buy expensive homes, the government could mandate rich people not be allowed to buy expensive homes because more resources will be spent on expensive homes which reduces the production of cheaper homes. The reduction of the availability of cheaper homes in the market increases the price for poorer people that can only aford cheaper, smaller homes. Solution, mandate a limit on spending on a home.
“but I suspect that Kennedy and perhaps Roberts will not want the courts to trump the elected branches of government.”
That’s their JOB - to interpret the constitutionality of both lower court judgments and LAWS!!!
“They may also believe that the alternative to the individual mandate is pure single payer socialized medicine.”
Irrelevant and immaterial! We have too many (leftist) justices on there who want to legislate from the bench already.
Incidentally - one of the main purposes (and ultimate result) of Obamacare IS to force a single-payer system in the end.
Maybe they’re afraid if they vote against obama the Black Panther Party will put out a bounty on them.
“Kennedy is the lone liberal on the court, I cant ever figure him out.”
Are you kidding me???
Leaving THAT one aside, Kennedy is indeed a swing vote - he’s often sided with the conservative justices for the good. Many 5-4 votes.
LOL - good on you!
I thought you stated and supported your opinion just fine. The other guy was being a jerk, what got a bug up his buns, I don't know.
As for Kennedy, that guy and Romney ought to use Massachusetts law to get married, they are a flip-flopping pair of RINO dingbats. I wish Reagan had stuck to his guns and nominated Bork again instead of caving to Ted Kennedy and the socialists. Look at all the problems he has caused us over the decades since.
“they would not dare to un-do what is already in place, as evidenced by all the Republicans backing off Repeal of Obamacare.”
If I recall, Republicans (the House) DID vote to repeal Obamacare. But with Dingy Harry leading the Dem majority Senate, it didn’t have a chance over there.
Kennedy’s comment concerned me, although he also made helpful comments.
This whole thing about the law of torts and talking about being “proximately close” to participating in the health care market by not participating in it, was straight out of left field.
You only cause costs to go up for others because government already forces the health care providers to treat you whether or not you can pay. So then he bootstraps the idea that you are causing a problem in the market, and therefore you are participating in it.
Of course, in reality you haven’t done a damn thing. It’s politicians who have decided to extend free health care to everyone via hospitals.
In reality, most people got their health insurance at work even when they were young and healthy. People didn’t shirk having insurance. Politicians then decided that because health care innovations made treatments more expensive, they had to “solve” this problem.
Without government intrusion, the market causes expensive new treatments to become cheaper over time.
Kennedy has a liberal interpretaion of the Constitution, two others have ‘moderate’ interpretations and two have conservative interpretations.
The other four just care about what they want. Their interpretations of the Constitution cannot be classed as liberal, moderate or conservative. I suppose they would be ‘creatives’.
How can Kennedy possibly uphold the mandate after saying it fundamentally changes the relationship between citizen and the state?
“Kennedy has a liberal interpretaion of the Constitution, two others have moderate interpretations and two have conservative interpretations. The other four just care about what they want. Their interpretations of the Constitution cannot be classed as liberal, moderate or conservative.”
Kennedy is often considered center-right. But Breyer’s liberal, Ginsburg certainly liberal (she’s said we need to consider international law and that a third world country should look to that rather than our constitution as a model), Kagan and Sotomayor - did you watch their hearings??? Leftist to the max, also with little regard for the Constitution.
Roberts, Alito, Thomas - conservative. Scalia is a pre-eminent constitutionalist and he tends to be conservative.