How Will SCOTUS Rule on ObamaCare? The Answer May Be in the Questions.

The New York Times tallies the questions that Supreme Court justices asked during this week's oral arguments in the cases challenging the Patient Protection and Affordable Care Act:

Is the individual mandate constitutional?

GINSBURG: 1 to the lawyer arguing yes, 5 to the lawyer arguing no

BREYER: 1 to the lawyer arguing yes, 7 to the lawyer arguing no

KAGAN: 3 to the lawyer arguing yes, 6 to the lawyer arguing no

SOTOMAYOR: 4 to the lawyer arguing yes, 15 to the lawyer arguing no

KENNEDY: 6 to the lawyer arguing yes, 3 to the lawyer arguing no

ROBERTS: 5 to the lawyer arguing yes, 0 to the lawyer arguing no

ALITO: 9 to the lawyer arguing yes, 2 to the lawyer arguing no

SCALIA: 12 to the lawyer arguing yes, 0 to the lawyer arguing no

THOMAS: 0 to the lawyer arguing yes, 0 to the lawyer arguing no

If the individual mandate is ruled unconstitutional, must the rest of the health law fall as well?

GINSBURG: 1 to the lawyer arguing yes, 1 to the lawyer arguing no

BREYER: 2 to the lawyer arguing yes, 1 to the lawyer arguing no

KAGAN: 3 to the lawyer arguing yes, 1 to the lawyer arguing no

SOTOMAYOR: 11 to the lawyer arguing yes, 3 to the lawyer arguing no

KENNEDY: 3 to the lawyer arguing yes, 6 to the lawyer arguing no

ROBERTS: 2 to the lawyer arguing yes, 5 to the lawyer arguing no

ALITO: 1 to the lawyer arguing yes, 3 to the lawyer arguing no

SCALIA: 4 to the lawyer arguing yes, 8 to the lawyer arguing no

THOMAS: 0 to the lawyer arguing yes, 0 to the lawyer arguing no

Was Congress entitled to impose conditions on the states in expanding the Medicaid program?

GINSBURG: 0 to the lawyer arguing yes, 5 to the lawyer arguing no

BREYER: 4 to the lawyer arguing yes, 5 to the lawyer arguing no

KAGAN: 1 to the lawyer arguing yes, 8 to the lawyer arguing no

SOTOMAYOR: 4 to the lawyer arguing yes, 7 to the lawyer arguing no

KENNEDY: 5 to the lawyer arguing yes, 1 to the lawyer arguing no

ROBERTS: 14 to the lawyer arguing yes, 2 to the lawyer arguing no

ALITO: 6 to the lawyer arguing yes, 0 to the lawyer arguing no

SCALIA: 7 to the lawyer arguing yes, 5 to the lawyer arguing no

THOMAS: 0 to the lawyer arguing yes, 0 to the lawyer arguing no

Thomas generally does not ask questions during oral argument, but Sotomayor sure is chatty, huh? As the Times notes, research has confirmed that "justices tend to ask more questions of the lawyers whose positions they oppose."

Comments

[Old Mexican]

Thomas generally does not ask questions during oral argument, but Sotomayor sure is chatty, huh?

That's why she's the Wise Latina. Those chatty women are all fucking geniuses.

[R C Dean]

Its the richness of her experience, from what I hear. It just overflows.

As a white male, and therefor genetically incapable of having rich experiences, I am envious.

[micsolana]

[quote]As a white male, and therefor genetically incapable of having rich experiences, I am envious.[/quote]

THIS.

[o3]

"Those chatty women are all fucking geniuses."
_
au contraire ol mex. i know plenty of women who talk their heads off & still not make sense....even when i listen

[I Blame Videogames!]

OM needs to start using the "/sarc" indicator for you, huh?

[darius404]

o3, you just need to listen HARDER. Get your ear right up to their mouths.

[cowardly commenter some guy]

Sounds like sexual harassment to me...

[DesigNate]

lol, snap. You know orrin, you should stick to comedy, it suits you much better than spouting off liberal nonsense.

[Bob]

I thought liberal nonsense was comedy!

[Ice Nine]

I'm hearing and reading way too much talk of the Supremes throwing Obamacare out, as if it were fait accompli. We're going to fall pretty hard when they uphold it.

[I Blame Videogames!]

We're going to fall pretty hard when they uphold it.

That sentence reads more than one way. But yes, the way the case went has given me dangerous hope.

[Just Dropping By]

But Ice Nine, don't you remember when all Federal gun laws were invalidated after Heller?

[Joe M]

As the Times notes, research has confirmed that "justices tend to ask more questions of the lawyers whose positions they oppose."

Based on Kennedy's tallies, that bodes quite well for Obamacare going down completely.

[Joe M]

Anyone else think it's a damn shame that the most libertarian-friendly justice basically never speaks up? I'd like more of his thoughts on these issues to be recorded.

[I Blame Videogames!]

Probably doesn't want to get mugged at the water cooler.

[R C Dean]

I'd like more of his thoughts on these issues to be recorded.

They are. Generally in a dissenting opinion, unfortunately.

[Joe M]

I said m0ar!

[cowardly commenter some guy]

Thomas rarely asks questions when reaching a case verdict for the same reason doctors rarely ask questions when declaring a newborn's sex. Usually, the correct answer is really fucking obvious.

[Joe M]

True, but like I said, I just wish more of his views were documented in the proceedings. He lets reports off the hook a bit.

It's kinda like how Ron Paul was treated in the GOP debates, except this would be like Paul get time, but declining to respond to all questions.

[cowardly commenter some guy]

I see what you mean and I agree. I guess he just has that much contempt for the whole oral argument process... or maybe he just doesn't like public speaking or confrontation or something...

[Joe M]

Heh, he's still smarting from his confirmation hearings.

[JY]

His written dissents are typically awesome though. I will take quiet oral arguements and awesome dissents any day.

[Juice]

Thomas is liberty friendly in some areas and very unfriendly in others. If you're a 13 year old being strip searched because of an Advil, you wouldn't think Thomas was very friendly to your liberty.

[Warty]

but Sotomayor sure is chatty, huh?

This is racist, right?

[fried wylie]

that you have to ask only exposes your blatant and unforgivable racism.

[Mensan]

No, it's sexist.

[Jenny McCarthy]

The Internet has failed. Someone needs to Photoshop this picture to have the justices doing jazz hands.

[Angle Iron]

And where the fuck are their hoodies?

[minor egg producer]

The posing of that picture is kinda curious, no? From an "architectural" or visual composition standpoint it's nice, but a modern PC-sensitive academic type could write a thesis around it.....

I bet the photographer was silently chuckling that nobody noticed during the setup....

[Sudden]

I'm trying to figure out howso. Care to explain? Something I'm not seeing?

[Brett L]

Blacks and women on the edges. White men in the middle.

[Sudden]

Just realized that. I was initially looking at bottom vs. top row for the distinction.

[Sudden]

Because all the wimminz and minorities are at the edges?

[Suki]

at the fringes

[Karl Hungus]

You mean at the margins . . . as in marginalized.

[Tulpa]

5 white men forming a pyramid of strength, flanked by 2 token minorities on the left and 2 token women on the right.

[Joe M]

I was more noticing how eight of them look pretty solid, and Ginsberg is just a shriveled little husk off to the side. And Kagan and Sotomayor both have these "just happy to be here" grins.

[Ice Nine]

The posing of that picture is kinda curious, no?

Uh, no. You do realize that it is based purely on seniority, don't you?

[minor egg producer]

No it isn't - there's no such thing. It's a seniority pattern applied to a particular seating pattern. I could think of lots of others, too.

It's entirely possible that this seating patter has been used for all recently preceding SC pix; heck, it may even be statutory. It's also possible that the photographer was being cute.

Regardless, in this case it happened (?) to make the ethno-gender-tastic core-plus-fringes pattern you see. So, yeah, it's curious.

[Ice Nine]

No it isn't - there's no such thing. It's a seniority pattern applied to a particular seating pattern.

I have no idea what your second sentence means other than exactly what I said. Your contradictory first sentence is, however, untrue: (from Wikipedia: "In the official yearly Court photograph, justices are arranged similarly, with the five most senior members sitting in the front row in the same order as they would sit during Court sessions (Thomas, Scalia, Roberts, Kennedy, Ginsburg), and the four most junior justices standing behind them, again in the same order as they would sit during Court sessions (Sotomayor, Breyer, Alito, Kagan)."

[Pip]

Is Ginsburg secretly masturbating?

[Clerk]

Heh. It's no secret.

[Michael]

I'M HERE FOR THE GANGBANG

[cowardly commenter some guy]

Just think, they probably took dozens of pictures in this shoot and that was the best one of Ginsburg they could get!

[R C Dean]

So, is it time to go on the record with our predictions?

[Montani Semper Liberi]

Kennedy will go with the liberal justices and the mandate will be upheld 5-4.

[Brett L]

Mandate Constitutionality: 6-3 against, Kagan and Kennedy being the break votes.
Separability: 9-0 against
Medicaid Constiutionality: 5-4 for (but being moot from points 1 & 2)

[Tulpa]

You have Kagan voting against? I guess that would shut the recusal demands down.

[Brett L]

I play the lottery, too.

[Joe M]

If Kagan votes unconstitutional, I'll eat my hat.

[PRO_AGRESSIVE]

BUT IF IT ENDZ UP UNCONSTITUTIONALZ, HOW WILL YOU AFFORD THE GASTRO SURGERY YOU WILL NEEDZ FROM EATING YOUR HAT!1!!??!?!!?111???1!1!!!

[fried wylie]

Leather would digest wouldn't it? Or would the residual tanning chemicals kill you? Plastic would probably also be safe enough. Obviously, if you wear a hat made of felt you're a dead man, but you knew the risks when you picked felt.

(what are tophats made of?)

[Zeb]

Usually felt.

[Pip]

The skin of baby African-Americans.

[Monocled Top Hats]

baby African-Americans

Now that is just ludicrous!

*puffs pipe*

We don't naturalize them first.

[DesigNate]

I have two. One made of velvet (that's my everyday wear). The other is made from the fur of The Vancouver Island Marmot. Naturally, I wear that one when I am overseeing my child migrant workers in my factory. It pairs nicely with my blood-diamond encrusted monocle.

[Monocled Top Hats]

blood-diamond encrusted monocle

As though there were any other kind!

*puffs pipe*

How are you supposed to know it's valuable unless the impoverished die in its acquisition?

[DesigNate]

*lights cigar made from leaves of some endangered rain forest plant*

Exactly my good man. Exactly.

[fried wylie]

*lights cigar made from leaves of some endangered now extinct rain forest plant*

ftfy.

[DesigNate]

Damn, that should have been obvious to me. Thanks.

[fried wylie]

Damn, that should have been obvious to me. Thanks.

I try to make my criticism as constructive as possible.

[Tulpa]

Nationals beat the Tigers in 6.

[Sudden]

Bold.

[R C Dean]

This is a really tough one. I can't see any of the 4 liberals breaking ranks, and I have a hard time imagining them voting for the mandate AND voting for non-severability.

I think it will come down to the liberal jurists statists trying to roll Roberts on "judicial activism/deference" and/or Kennedy on the "merits". In a spirit of giddy optimism, here goes:

Mandate: Unconstitutional 5-4.
Medicaid: Constitutional, 6 - 3 (Libs plus Kennedy and Roberts).
Severability: 5-4 (Libs plus Roberts).

So, the health insurance reform titles go down, the Medicaid titles and miscellaneous garbage (like nationalization of student loans, if memory serves) stay on the books.

[R C Dean]

If Kennedy breaks for the mandate, Roberts will too, for damage control on Kagan's vote. So it could be 6-3 Constitutional right down the line.

[Charlotte Corday]

Kennedy won't break on the mandate. And I think Roberts', Kennedy and Scalia's obsession with certainty and not upsetting the boat too much will cause them to vote no (or yes?) on severability, meaning the whole law goes down. Just taking out part of the law will create more chaos than killing the whole thing. For that reason you can bank on Kennedy and Roberts voting to kill the whole bill.

And all of the votes will be 5-4.

[R C Dean]

I'd have to look at the law to be sure (which ain't gonna happen), but I seem to recall that it is organized in such a way that it wouldn't really be that hard to sever it into two or three bloody chunks.

[cowardly commenter some guy]

Question:

If the mandate is found unconstitutional and the mandate is found to be unseverable from the rest of the law, doesn't that mean the whole law gets killed, including the Medicaid bit? Is the Medicaid stuff being treated seperately from the rest of the law for severability purposes?

[R C Dean]

You're right. If they say it can't be severed, then a vote against either the mandate or Medicaid means the whole thing goes down.

If they don't sever, I don't know why they would even rule on both the mandate and Medicaid.

[Lord Humungus]

I'll be the negative nellie here since I believe in the power of negative thinking (if I believe something bad will happen, it won't, much to my relief).

Mandate: 4-5 against. Kennedy breaks
Sep: 8-1 against
Medicaid 6-3 for

[Lord Humungus]

to clarify, mandate stays, so does Sep and Medicaid. We get screwed.

[Guano Havta Goewit]

The unexpected twist: Debilitating medical emergency before the decision can be finalized.

[MikeP]

I expect most Supreme Court decisions could be concluded over pillow talk between Scalia and Sotomayor while Kennedy watches.

You may now try to unvisualize that.

[darius404]

Thankfully, I don't know what they look like. So now I'm just envisioning an attractive man and woman in bed, with Kennedy watching.

[Joe M]

Check the photo above. Even if you don't know who's who, none of your options are good.

[Pam Bondi Reelection Committee]

Pam Bondi for the Supreme Court!

[Zeb]

I think they'd make an adorable couple. All ethnic and chubby. The Kennedy thing is a bit weird, though.

[Joe]

As opposed to all the other things people with the last name "Kennedy" do?

[Ted Kennedy]

NEEDS MOAR DRUGZ, HOOKERZ AND DEAD CHICKZ

[?]

I've always sympathized with Thomas's contempt for oral argument, because lawyers are why thesauruses tell you "bootlicker" and "snob" are synonyms, and because nothing is ever learned by it. But this week we did learn something: Kagan is a ditz. I'd thought of her as somewhere on the canny operator/cog/seat-filler spectrum. NOPE. That bulb is out, yo.

So, is it time to go on the record with our predictions?

Just like Heller. "We" think we've won, because the Constitution gets cited in a way that's similar to how we'd cite it, but if we examine the majority opinion closely, it can be interpreted to have no binding effect on any law or regulation except the one the case is named after. And so it won't.

Then the C.H.U.D.s rise.

[darius404]

That's more than I would expect. If it's anything like Heller, it will give rise to other lawsuits.

[Joe M]

My predictions:
5-4 mandate is unconstitutional, with the obvious split
7-2 separability, with Sotomayor and Kagan dissenting
6-3 against the medicaid changes, with Ginsberg switching to join conservatives

[Arcaster]

That's how I'm seeing it, Joe.

[cowardly commenter some guy]

So, just to be clear, you're saying 7-2 that the mandate is not severable from the rest of the law?

I could see that. Though, I wouldn't be surprised if one of the liberals surprised us.

I would love to be able to sit in on their internal deliberations...

[cowardly commenter some guy]

I also wouldn't be surprised if Kennedy went full asshat and upheld the mandate even after "strongly" questioning the defense.

[Joe M]

Yes, I think the other two liberal judges have maybe some scraps of integrity that would get them to acknowledge that the bill didn't contain the standard severability clause, so them's the breaks. Sotomayor and Kagan, on the other hand, will vote down the line to preserve any parts of Obamacare they possibly can. Otherwise, what's the point of being an Obama stooge?

[cowardly commenter some guy]

Well, both Sotomayor and Kagan probably have over 20 years ahead of them as SCOTUS justices. They won't be Obama stooges forever. They may choose to assert themselves here, especially if they think they have no hope of saving this particular law.

[DesigNate]

I'm gonna say:
6-3 mandate unconstitutional, Sotomayor surprises.
5-4 severability, obvious split
7-2 medicaid constitutional

[Joe M]

Wait, are you saying 5-4 that the law is severable?

[DesigNate]

No, I meant not severable.

I pulled all of those numbers directly out of my ass btw.

[kinnath]

Starting to see lots of headlines via Google News of the nature that losing Obamacare could be good for the democrats or for Obama's re-election.

So the mainstream media is starting to accept that Obamacare is dead.

[Lord Humungus]

I don't see how this could be good for Obama, but I'm not a seething liberal. Independents will break for Obama because of his ability to sign unconstitutional bills?

[Joe M]

No, he's going to run against the Supreme Court.

[Brett L]

The quotations I saw were from James Carrville. If Nancy Pelosi went on a shooting spree in a preschool, funded and approved by the DNC, DNCC, and DSCC, he'd have a reason why it was good for the Democratic party.

[kinnath]

News articles seems to be splitting between 1) terrible week for Obama and 2) this will work out for Obama in the end.

In either case, the MSM seems to be implying that Obamacare will be wiped out.

I suggested on a thread a couple of days ago that Obama wants to lose on Obamacare to make it a campaign issue.

The adminstration could have used the courts to drag this out until after the election. But they didn't so they want it to be a campaign issue. Either that, or they absolutely thought they were going to win and it would be helpful in the campaign.

[Brett L]

"they absolutely thought they were going to win and it would be helpful in the campaign."

I'm going with this option. He and his circle are so insular and arrogant it never occurred to them that it would be this close.

[cowardly commenter some guy]

So you think Verrilli's stammering and sputtering was all a show?

I know, I know, it is possible for someone to be both evil and incompetent.

[kinnath]

There was an article that said that Verrilli was one of the most accomplished advocates in front of the Supreme Court and that this week's performance was out of character.

You decide.

[R C Dean]

Would he take one for the team? You'd have to know him personally, but I doubt it.

I think its pure spin that losing helps Obama.

If he wins, then he gets to run with one domestic accomplishment, and the Repub nominee (ROMNIAC) is neutered in opposing it.

If he loses, well, he gets the stank of losing all over him, he has no signature accomplishment to run on, domestically, and ROMNIAC has an out on healthcare ("See, I said it was a laboratory-of-the-states type of thing, not a national thing").

[Joe M]

Yeah, I hadn't thought about it too much, but Obamacare going down could really put Romney in a strong position. He's not the bad guy from any angle.

[kinnath]

I think losing the mandate and possibilty the whole act would be terrible for Obama.

I was just noticing the trends in the headlines. We've gone from the notion that arguments against Obamacare are ludicrous; to the notion that the conservatives on the court might be stupid enough to buy the lidicrous arguments; to OMG Obamacare is going down; to "Eh, not to worry".

[TOWM]

I don't see how this could be good for Obama, but I'm not a seething liberal. Independents will break for Obama because of his ability to sign unconstitutional bills?
-----------

The Republicans won't have Obamacare to run against so the independents not thrilled about the completely unthrilling Romney will have less reason to vote for him. Obama won't have this monstrosity hanging around his neck and gets to blame it on activist conservative judges.

Obama is probably privately praying for unconstitutional.

[Juice]

What I don't get is how the mandate can be taken to court BEFORE it goes into effect. Has this ever been done before? Who has "standing" to sue?

Hell, I'd like to see all bills go through judicial review before their enacted and then subject to judicial review afterward as well.

[cowardly commenter some guy]

Didn't the defendants have an opportunity to challenge the standing, but refuse because they actually wanted this to go to SCOTUS as quickly as possible?

[Juice]

I have no idea. That's why I asked.

[shrike]

Better dead than Red

[Matt Fuerst]

Is there a tradition of Justices acting akin to Justice Thomas? As in, generally not asking questions during oral arguments?

Is his lack of interaction considered controversial to Supreme Court academics/thinkers?

What's the best book on the history of the Supreme Court?