The Commentariat -- March 27, 2012 Supreme Court Edition

Solicitor General Daniel Verrilli argues before the Supreme Court. Art by Dana Verourteren of the AP.Disaster!

** New York Times Editors: "If the Supreme Court hews to established law, the only question it must answer in this case is modest: Did Congress have a rational basis for concluding that the economic effects of a broken health care system warranted a national solution? The answer is incontrovertibly yes."

Kate Pickert of Time has a pretty good summary of Tuesday's arguments.

Adam Liptak of the New York Times: "With the fate of President Obama’s health care law hanging in the balance at the Supreme Court on Tuesday, a lawyer for the administration faced a barrage of skeptical questions from four of the court’s more conservative justices."

N. C. Aizenman & Robert Barnes of the Washington Post: "The Supreme Court on Tuesday ended two hours of arguments about the key component of the nation’s health-care overhaul, with the court’s dominant conservatives appearing deeply skeptical that the Constitution gives Congress the power to compel Americans to either purchase health insurance or pay a penalty. Justice Anthony M. Kennedy, traditionally the justice most likely to side with the court’s liberals, suggested that the 2010 Patient Protection and Affordable Care Act invoked a power 'beyond what our cases allow' the Congress to wield in regulating interstate commerce."

David Leonhardt of the New York Times: "... it should not be much of a surprise if the court splits along political lines, much as it did in the Bush v. Gore ruling in 2000."

Dahlia Lithwick: "Obama’s signature legislative achievement will probably rise or fall on the opinion of John Roberts and Anthony Kennedy." With video of Lithwick discussing the oral arguments.

Lyle Denniston of ScotusBlog: "If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior."

Brian Beutler of TPM: "In an exchange with a plaintiffs attorney, [Chief Justice] Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power. 'The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense,' Roberts said, over strong objections from attorney Gregory Katsas."

Adam Serwer of Mother Jones: "Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court." ...

     ... CW: I think Verrilli is (a) sick and (b) medicated. Listen:

     ... CW Update: I listened to all of Verrilli's argument, and it appears he just got off to a bad start. I thought he mostly did a credible job, and I am reminded once again that I could not do half as well as any lawyer who goes before the Supremes. I will agree with Serwer that Verrilli never answered the question asked by Alito & others, a question for which he should have had an answer on the ready: "So what are the limits of the Commerce Clause?" And he would have done well to make the point that the Editors of the New York Times do above: the only question before the Court is whether or not Congress was right to try to fix the national healthcare crisis. Plus, I am reminded yet again what a total dick Scalia is. (Another reason I couldn't appear before the Court -- I would tell Scalia he was a total dick.) I used to think Scalia was really clever in a malicious way; then I thought he was clever and crazy; now I think he's truly thick-headed -- he could not get over the broccoli question (which I treated as a joke in my column yesterday -- because it is a joke). I don't think he was playing dumb; I think he is dumb. Also, numerous commentators wrote about how great Paul Clement was in his arguments for the states; I listened to only some of what he had to say, and he was more repetitive than Verrilli; he kept harping on New Yorkers' not buying cars which could ruin the auto industry -- an argument that is as applicable as the broccoli thesis.

Stephen Colbert has "The Word":

Right Wing World *

Best Non-Apology Apology of the Week. I apologize to anyone offended by what one prominent black conservative called my ‘very practical and potentially life-saving campaign urging black and Hispanic parents not to let their children go around wearing hoodies.' -- Geraldo Rivera

Kevin Robillard of Politico: "House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) apologized Tuesday for accusing Rep. Carolyn Maloney (D-N.Y.) of lying about the lack of female witnesses at a controversial hearing on contraception last month. And while Maloney accepted his apology, both members continued to push their version of events."

The Hill: Newt Gringrich explains how a brokered convention would/will work: "We'll basically have a national, electronic convention. I can imagine a circumstance, for example, where they suspended the keynote address on the first night and actually had a presidential debate in front of the delegates of the candidates." CW: that is, the GOP will throw out all those meaningless primary votes by the know-nothing rank-and-file, I'll get up and shatter my stupid competitors in an historic debate (everything I do is historic), after which I shall be anointed the nominee and Callista will get to wear her Tiffany's tiara.

Michael Memoli of the Los Angeles Times: "Newt Gingrich's campaign says that a new policy to charge supporters $50 to take a photo with the GOP hopeful is really a way to showcase the grass-roots strength of his shoestring campaign. Reporters traveling with the former House speaker on Monday took note of the new paid photo policy, observing that he had long taken pictures with people attending his events for free." CW: Newt is just planning ahead. A tiara from Tiffany's is expensive.

I'm Rich, for Pete's Sake. Reid Epstein of Politico: "At Mitt Romney’s proposed California beach house, the cars will have their own separate elevator. There’s also a planned outdoor shower and a 3,600-square foot basement — a room with more floor space than the existing home’s entire living quarters.... A project this ambitious comes with another feature you don’t always find with the typical fixer-upper: its own lobbyist, hired by Romney to push the plan through the approval process."

* Which, admittedly, includes the majority on the Supreme Court.

Comments

[Carlyle]

Fear may dictate what the Supremes rule on the Affordable Care Act. Roberts may have enough foresight to see that stopping the AFC may make the next big case a worse one.
Without the mandate, all of the other features of the AFC must be dropped or insurance and medical costs will go through the roof. If medical costs spike, more people will drop out and more employers will stop providing medical insurance.
It is conceivable that in one or two years we may have one hundred million Americans without medical insurance. A Ryan type plan will guarantee more than a hundred million.
Roberts may be saving the wing nuts from themselves, knowing that the population cannot be controlled with this level of medical hurt.
Like a pheonix, a single payer plan may rise from the ashes of Obamacare.

[SFinkel]

This is a low point for the cartoon characters appointed to run the show on which our health appears to depend. They weren't supposed to see the disfigured burn victims, or give a damn about who did what to whom and when, how and why. They weren't supposed to wake up to find that the mockingbird is kaput--it was diagnosed with too much faith in the pharmaceutical industry's quality control process and it dropped dead from its perch. Now the wing nuts are finally speaking up. As always if not avoided, they'll be accused of erring on the side of calibre over compromise. As always they'll get the short shrift in the competing narratives that lead to inevitably inferior and superior choices.