Don't Count On Justice Kennedy (Based On His Comments Today)

Vanity Analysis Of SCOTUS Transcript | 3/27/12

[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

[mrsmith]

Also, there are only a few liberals in the Senate.

Mostly there are moderates, conservatives and a very large number of socialists.

I don’t consider a liberal and a socialist the same, though the media does.
I think it hinders clear thinking to equate them so I don’t.
Despite the media.

[St_Thomas_Aquinas]

-—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.-—

In that sense, we’ve already lost. The complete destruction of our constitutional form of government is just a matter of time.

[llandres]

“Also, there are only a few liberals in the Senate. Mostly there are moderates, conservatives and a very large number of socialists.”

That I would probably agree with. Many of the liberals (blue dog Democrats) of the more traditional kind were either defeated by Leftists or decided not to run again in ‘08, so we’re left with the socialists, and worse.