SCOTUS will rule on health care reform…
…in March of 2012, in plenty of time to influence the election.
The court will allow an “extraordinary” 5 1/2 hours of oral argument:
In the modern era, the last time the court allotted anywhere near this much time for arguments was in 2003 for consideration of the McCain-Feingold campaign finance reform. That case consumed four hours of argument. This argument may spread over two days, as the justices rarely hear more than two or three hours a day.
I hadn’t known that oral arguments are ordinarily so limited before SCOTUS. Of course, the justices will be relying not merely (or even mostly) on oral arguments; they will have read a great deal about the case before the big day (or days) comes.
As for how they will vote, your guess is as good as mine (or anyone’s), but I don’t think there’s any chance that the liberal justices won’t uphold the individual mandate and HCR. The real question is what the conservative ones and swing justice Kennedy will do.
It’s often said that, with this court, you could just ask Kennedy what he thinks and skip the rest. Everyone else is relatively predictable, although this time—perhaps because the questions to be decided in this case are rather unusual—it’s more difficult to prognosticate:
Legal experts have offered a range of opinions about what the high court might do. Many prominent Supreme Court lawyers believe that the law will be upheld by a lopsided vote, with Republican and Democratic appointees ruling in its favor. Still others predict a close outcome, with Justice Anthony Kennedy, a Republican who sometimes joins his four Democratic colleagues, holding the deciding vote.
I certainly agree with this:
The case could become the high court’s most significant and political ruling since its 5-4 decision in the Bush v. Gore case nearly 11 years ago effectively sealed George W. Bush’s 2000 presidential election victory.
The fact that the court will hear the case before the 2012 election is telling; the justices don’t seem to be shying away from exerting political influence. Another case that had extreme political significance (and IMHO was one of the worst SCOTUS decisions handed down in my lifetime) was Clinton v Jones, where the court opined that suing a sitting president in civil court for actions prior to taking on the presidency would not be disruptive.
Ha! Just another demonstration of the fact that the law is an ass and an idiot—although, , in regard to whether a civil suit against a sitting president is likely to be disruptive, its eyes most likely have been opened by experience, as Mr. Bumble hoped.
Court announcement raises recusal questions for Kagan, Thomas
http://www.washingtontimes.com/news/2011/nov/14/court-announcement-raises-recusal-questions-kagan-/
“Before the Supreme Court case is heard we need to know if Justice Elena Kagan helped the Obama Administration prepare its defense for Obamacare when she was solicitor general. The Justice Department must answer serious questions about whether Justice Kagan has an inherent conflict of interest which would demand that she recuse herself from the Obamacare case,” said Rep. John Flemming, Louisiana Republican.
http://gizmodo.com/5859081/why-is-china-building-these-gigantic-structures-in-the-middle-of-the-desert
Cato: Obamacare bigger than Roe v Wade
http://www.cato-at-liberty.org/obamacare-is-bigger-than-roe-v-wade/
Summary paragraph says it all:
“In any event, the Supreme Court has now set the stage for the most significant case since Roe v. Wade. Indeed, this litigation implicates the future of the Republic as Roe never did. On both the individual-mandate and Medicaid-coercion issues, the Court will decide whether the Constitution’s structure – federalism and enumeration of powers – is judicially enforceable or whether Congress is the sole judge of its own authority. In other words, do we have a government of laws or men?”
Scary, very scary. Real life is more than “Profiles in Courage.”
One man, one vote, one time applies to Justice Kennedy, who ascended after Bork’s character assassination. There is something dreadfully wrong with a process that empowers SCOTUS as the final arbiter with lifetime security for its members, hardly ever to reverse itself on anything. And apparently allows Kagan to decide for herself whether her recusal is, or is not, appropriate.
Scary. The only scarier thing will be for one of the four Constitutionalists to become incapacitated or die between now and the March hearing (or after, but pre-ruling).
This single case will determine the future of the Republic, thanks to its linkage to the Commerce Clause.
Scary.
Is a judge’s failure to recuse grounds for an appeal?
The proper remedy for Obamacare is to pass legislation that repeals it.
Any Supreme Court justice will have to essentially declare that the progressive foundation established in Wickard v Filburn is wrong. I doubt Kennedy is up to it.
A supposed conservative appellate judge ruled in favor of Obamacare and wrote:
“The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins…”
This piece of tripe for a judge appointed by Reagan was more gob-smacking than the original passage of Obamacare.
It is the Florida case which was decided by Judge Vinson which the Supreme Court is considering. So, if Kagan had to resign and there was a 4 to 4 vote, then vinson’s decison denying Obamacare would hold.
Regarding an appeal if Kagan does not recuse herself (and she won’t) what other court is higher than the Supreme Court. But, as equity demands that every wrong has a remedy, there must be some type of something someone could do if it was shown absolutely that Kagan should have recused herself.
How about that for specificity: something someone could do!
The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins…
How about that? Congress’s “imperative” to be free is more important than yours or mine or the states’. Never mind that Congress has no authority to “forge” “solutions” to problems just because they are, or are claimed to be, national problems.
I am tempted to hope that the court upholds the law entirely. The electoral backlash in November would be astounding. Hopefully, the Republicans in Washington would then be able to expand the number of seats on the court by, say, at least six, and then the Republicans in the various states could start passing laws that would eventually allow old precedents to be overturned by a court that actually respects the constitution instead of undermining it.
I can dream, can’t I?
Let’s hope the Supreme Court allows Obamacare to pass. It will motivate the anti-Obama forces to show up and vote in November. Hopefully the next Congress will find a way to throw Kagan off the court (I can dream can’t I).
In all honesty I knew Obama would be at the very least the second worse President in US history but even I underestimated the man. He has proven far worse than my worse expectations. With luck it will take a generation to undo the damage of Barak Obama.
Hmm. It seems that either way, Obama loses, yes? If Obamacare goes down, his single accomplishment is gone and his entire term of office wasted. If it’s upheld, out comes the energized opposition. Very interesting. I’m guessing it’ll be upheld–generally speaking, the Supreme Court has never seen an expansion of the Commerce Clause it didn’t love.
Don Carlos, once in a while there’s a legal or ethical obligation to recuse (which wouldn’t be the case based on anything that’s come out about Kagan so far) but usually it is left to the judge’s personal discretion and not second-guessed by other judges. And there’s no appeal from the Supreme Court.
Charles Lane at The PooPo (WaPo) has a good argument that the Supreme Court should not be deciding the Obamacare issue at this time. He also references the dissenter’s opinion from the D.C. circuit, judge Kavanaugh.
Lane writes “Kavanaugh’s wise and meticulous 65-page opinion showed that there is a statutory basis, under the 1867 Anti-Injunction Act, for the courts to dismiss these suits until the health-care law goes into effect and some actual plaintiff faces the mandate.
In the meantime, Congress and the president, influenced by the vote in 2012, would be free to adapt or eliminate the law as they see fit. The political process could run its course.”
Mrs Whatsit, re recusal: You reiterate the points I was endeavoring to make (sometimes a question is a rhetorical device, not a query).
There is only an “ethical obligation” to recuse, which should generate peals of sardonic laughter in less desperate times.
Of course there’s no appeal above SCOTUS, so we have assigned our lives, our fortunes and our sacred honor to The Nine Who Endure For Life (or as long as they themselves may wish), and seldom undo what their predecessors have wrought.