In 2009, when someone asked Nancy Pelosi a question implying that health reform legislation might be unconstitutional, she replied: “Are you serious?”

Pelosi wasn’t alone. At the outset, many legal scholars considered the challenge to the Affordable Care Act (ACA) both “implausible” and “frivolous.”

But over the next two years, the notion that state courts might strike down the ACA took on a life of its own. Most people had only a hazy idea of what was actually in the legislation; nevertheless the idea of “health reform” inspired heated rhetoric. Soon, state attorneys general and governors responded to the political opportunities, banding together to make what Slate Senior Editor Dahlia Lithwick calls, “novel arguments in the form of what was always a constitutional Hail Mary pass … It’s no accident that until the lower district courts started striking down the act, none of the challengers really believed that they could succeed.”

Yet somehow, this week, the highest court in the land is hearing oral arguments in a case that even supporters viewed as a long shot. How did this happen?

The media played a major role, fanning political passions by quoting every challenge – including the absurd claim that the bill called for “death panels.” As Rachel Maddow observed Monday night: this case was “built up as the Super Bowl of American partisan politics.” Thus, the Supreme Court was left with little choice: it had to hear “The Case of the Century.”

Why media fanned the flames

Why did reporters latch onto the story? First, the media is in the business of selling newspapers and air time. Health reform is a “hot-button” topic.

Secondly, as Linda Greenhouse explains in a scathing New York Times Op-ed: “Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale” – even when “one side of a controversy obviously lacks merit.” (This is what some call “balanced” reporting.)

“Journalistic accounts of court cases … treat the arguments on both sides with equal dignity,” explains Greenhouse, a Pulitzer Prize winner who has covered the Supreme Court for 30 years, and now teaches at Yale’s law school. “So it’s perhaps not surprising that just about half the public apparently believes that … the individual mandate is unconstitutional.” But Greenhouse comes down on the side “truth-telling” over “balance”:

“I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance … is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.”

Nevertheless the media succeeded in blowing the story up, and in two years, what constitutional experts thought was a non-story became a Supreme Court case.

Legal minds saw a ‘non-story’

Over that time, the U.S. Constitution hasn’t changed. The challenge is as thin as it was in 2010, when Charles Fried, who served as soliciter general under President Ronald Reagan, told ABC News that “anyone” who questions the constitutionality of the Affordable Care act “is either ignorant – I mean, deeply ignorant – or just grandstanding in a preposterous way. It is simply a political ploy and a pathetic one at that.”

Prominent legal scholars also spoke out: “States can no more nullify a federal law like this than they could nullify the civil rights laws” said Timothy Stoltzfus Jost, a health law expert at Washington & Lee University School of Law.  Mark A. Hall, a law professor at Wake Forest agreed: “There is no way this challenge will succeed in court,” adding that the cases brought by the states seem “sort of an act of defiance, a form of civil disobedience if you will.” In other words, this was a Tea Party demonstration.

Initially, reform’s opponents lost in two state courts where judges appointed by Democrats ruled against them. They also lost their first case in an Appeals Court where Laurence Silberman, a conservative Reagan appointee who is regarded as a serious constitutional scholar, concluded that there is “no textual support” in the constitution “that mandating the purchase of health insurance is unconstitutional.

But other Republican judges sided with the challengers – most importantly in Florida, where that state and 26 partner states won. The mandate was no longer a Tea Party talking point; it had become an issue that Congressional Republicans took seriously.

This was not always the case. Until very recently, scholars who specialize in the history of health reform explain, the proposition that “it is wrong to allow people who can afford insurance to shift the cost of their care to others by refusing to provide responsibly for their future health needs” enjoyed “broad bi-partisan support … Indeed, ten current Republican Senators who now oppose the minimum coverage requirement as unconstitutional previously sponsored or cosponsored legislation that included an individual mandate.”

‘No free riders’ means everyone must pay

Republicans, like Democrats understood that at some point in time, virtually everyone will need health care. If we don’t want to let “free riders” impose the cost of their care on all of us, we must ask everyone to buy coverage.

Yesterday, Chief Justice John Roberts asked if the government has the power to require that everyone buy a cell phone. The answer is “No,” because cell phones are not a necessity. If someone doesn’t have one, the rest of us don’t feel obliged to buy one for him. But health care is a necessity. And in our society, we are not inclined to leave people to bleed to death on the sidewalk because they didn’t buy insurance.

It is only recently, as healthcare reform became “Obamacare,” that conservatives have disavowed a mandate they once embraced. In other words, it seems that they are objecting, not to the idea everyone who can afford it should purchase insurance, but rather to the fact that President Obama has succeeded in doing what so many past presidents have tried and failed to do.

Could it be that this debate is really not about the Constitution, but instead, about what Senate Minority Leader Mitch McConnell has called Republicans’ “number one goal” – to get Obama out of the White House?

That said, I remain extremely hopeful that when the justices hand down a decision in June, they will act as officers of the court, not as politicians.

Maggie Mahar is an author and financial journalist who has written extensively about the American health care system. Her book, Money-Driven Medicine: The Real Reason Health Care Costs So Much, was the inspiration for the documentary, Money Driven Medicine. She is a prolific blogger, writing most recently for TIME’s Moneyland. Previously she wrote and edited the Health Beat blog for the progressive think tank, The Century Foundation. Previous work for the Health Insurance Resource Center includes Will the Supreme Court strike down health reform? She also recently provided background on Congressional health care legislation for HealthReformVotes.org, a special project of the Health Insurance Resource Center. This post first appeared at healthinsurance.org

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77 Responses for “How Did the Challenge to the Affordable Care Act Ever Make it to the U.S. Supreme Court?”

  1. BobbyG says:

    “And in our society, we are not inclined to leave people to bleed to death on the sidewalk because they didn’t buy insurance.”
    __

    But, as Scalia coldly noted during Orals, we could change that.

  2. J.D. Kleinke says:

    Not only do most people (including the SC justices) have no idea what’s actually in the law, they don’t even know how long it is. The actual approved PPACA is 906 pages…and yet reporters and critics continue to Google and repeat each other that the law is 2000, 2400, or 2700 pages – various draft lengths that make for a big fat incendiary number. Justice Scalia quoted the third option – 2700 pages – just in case any of us think the Court is reading and analyzing the actual law, rather than the inflammatory news coverage of it.

    • BobbyG says:

      I’ve been saying that all along. I have my 906 page PDF copy. I refer to it often.

      “Why Do Humans Reason?” (Sperber / Mercier)

      To prevail, not to get at anything approaching “truth.”

      btw, JD, I have you to thank for the debunkery quip that HIPAA was not in fact legislated to “protect patient privacy.” 13 out of 167 pages, inserted at the relative 11th hour.

  3. John Ballard says:

    Scalia is an embarrassment. By making reference to 2700 pages plus that Cornhusker reference he really tipped his hand as the least intellectually curious member of the Court. That plus the ever-mute Justice Thomas (whose wife is up to her bonnet in super-Conservative political causes) and that end of the politics of the Court stands naked. Of the truly “Conservative” block, only Alito and Roberts retain any integrity in my view.

    • BobbyG says:

      Interesting comment I saw elsewhere:
      __

      “There’s an Alice-In-Wonderland aspect to this debate since the politics of the individual mandate intimately intersect with the political careers of this year’s presidential nominees. One candidate even pretends his pioneering role is somehow irrelevant because of the 10th Amendment or some other rhetorical sleight of hand.

      Supreme Court justices are political animals and they’re more than willing to take precedents and cast them overboard if it furthers their own activist desires (e.g., Citizens United). If this case were decided purely on the basis of stare decisis, there would be no question about the legality of the mandate. But it’s being decided in a political arena, one where the actors wear black robes and over their campaign buttons.

      The ideological question that is the central to our government is whether the Constitution should reflect the country of the 21st century or the 18th century. Thomas and Scalia are more than willing to turn back the clock to an agrarian republic where simplicity ruled the lives of citizens. Today, it’s complexity that rules, mostly because of industrialization and economic stratification, and as a result of that, a citizenry ruled by economic forces the Founding Fathers couldn’t foresee. A Constitution that doesn’t reflect the physical reality of this republic is a straitjacket. And a jurisprudence that indulges nostalgic daydreams of yeoman farmers and town halls is probably closer to nihilism than virtue.”

      - Walter Hall

  4. Nate Ogden says:

    “The answer is “No,” because cell phones are not a necessity. If someone doesn’t have one, the rest of us don’t feel obliged to buy one for him.”

    In 2008, the fund that foots the bill for this program contributed $819 million to subsidize low-income telephone services.

    Ok maggie then why are tax payers spending 1 billion a year to provide them?

    “But health care is a necessity.”

    Then manadate healthcare, health insurance is not a necessity.

    Mark Hall is a liberal propogandist that doesn’t know anything about insurance. He provides media folks with quotes they want to hear and is wrong far more then he is right. See his laughable quote in the LA Times story on small group self funding.

    Not a single person you quote is qualified to be making the arguments they are.

    “Secondly, as Linda Greenhouse explains in a scathing New York Times Op-ed: “Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale”

    To bad Journalism has been dead for 20 years. This never happens and no one with half a brain believes it exist today.

    What your post really boils down to is a bunch of liberals made bad predictions and are now trying to save face.

  5. MD as HELL says:

    Time to just see what happens. No wonder all the old crowd has stopped commenting here. They probably look in now and then, but what is the point? This is no longer relevant.

  6. Maggie Mahar says:

    Thanks for the comments–

    Bobby G– Yes, Scalia’s public statment that no one could expect him to read so many pages was extraordinary One wonders how he got through law school.

    And I’m afraid that he would be wiilling to let people bleed to death.

    J.D.– Yes, it is amazing how many reporters have made no effort to read the bill, and so have no idea how long it its.
    I understand that today’s reporters are expected to produce stories under tighter and tighter deadlines.

    But online it is very easy to call up the legislation and use “search” to
    check out what the document actually says about various topics. Rather than spending time Googling and reading what others have said ( a thick porridge of misinformation, half-truths and good information) a jouranlist might better spend an hour or so “searching” the bill itself.

    John– I have hopes that Roberts — and perhaps one or two others–will step across party lines because they care about the court’s legacy and don’t want to seen as simply voting their poitics. I’ve written about this here:
    http://www.healthinsurance.org/blog/2012/03/26/will-the-supreme-court-strike-down-health-reform/

    Many saw the Gore decision as political; this hurt the Court’s reputatoin for neutrality. I think that, as chief justice, Roberts worries about this. In addition, if the court strikes down the most important piece of legislation that Congress has passed in 47 years, it will take us to the brink of a
    constitutional crisis. At a time when the nation is polarized, and the economy is in shambles, I doubt the Court would want to take reponsiblty for brining us to that point.

    IF the majoirty of U.S. citizens object to health reform, they have the power to vote Obama out of office, and give majority power to Republicans in both the House and the Senate. They would surely repeal the legislation.

    This is the way our system is supposed to work. The Court is not supposed to re-write legilslation passed by our elected representatives.
    If we decide that we regret electing them, we, the peopple, have the right to elect new representatives who will undo what they have done.

    Bobby G– You’re certainly right that the current political circus seems to have infectred the court. But I’m hoping that at least 5 of the Justices don’t want to be seen as enaged in a charade– wearing black robes over their campaign buttons. See http://www.healthinsurance.org/blog/2012/03/26/will-the-supreme-court-strike-down-health-reform/

    If enough editorialists and pundits in the mainstream press express outrage over the possiblity that the Supreme Court will vote stictly along partisan lines, this could make a difference. Most Supreme Court justicies do care about how they go down in history. They want to be seen as constitutional scholars, not poitical hacks.

    Nate–You are talking about the Washington Telephone Assistance Program: Let me quote from the fact sheet on the program: “WTAP does NOT pay for cell phones” .http://www.dshs.wa.gov/wtap.shtml

    A cell phone is not a necessity. Having a phone in your home is a necessity: if your house is on fire and you need to call the fire department; or if someone has a heart attack and you you need to call an ambulance; or if a baby stops breathing;. or if someone is breaking into your apt. and you need to call the police. (Maybe you could go to a neighbor’s house to call– if they have a phone and will let you in in the middle of the night –not always the case in poor, tough neighborhoods. . Meanwhile, you waste precious minutes.))..

    WTAP pays for half of a connection fee up to $22, and provides unlimited local service for $8 a month plus taxes for very poor families.

    • Nate Ogden says:

      Yes, Scalia’s public statment that no one could expect him to read so many pages was extraordinary One wonders how he got through law school.

      You mean his joke about the 8th amendment and reading ppaca would be cruel and unusual punishment?

      Get a life

      • Nate Ogden says:

        “Politico: “Mr. Kneedler, what happened to the Eighth Amendment?” Scalia asked — a joking reference to the Constitution’s prohibition on cruel and unusual punishment. “You really want us to go through these 2,700 pages?”

        What were you yapping on about truth in reporting? Then you turn around and distort a statement for cheap political points. Be a little more hypocritical Maggie.

    • Nate Ogden says:

      “Nate–You are talking about the Washington Telephone Assistance Program:”

      No Maggie I am not. Little common sense, how could WA spend 1 billion on phones by itself?

      http://www.forbes.com/sites/kellyphillipserb/2012/02/12/are-taxpayers-paying-for-free-cell-phones/

      Federal Programs Lifeline and Linkup paid out of Universal Service fund.

      You know as little about this as you do healthcare.

      Here is the bill to end it;

      11/18/2011–Introduced.Stop Taxpayer Funded Cell Phones Act of 2011 – Prohibits a provider of commercial mobile communications service from receiving universal service support under specified provisions of the Communications Act of 1934 for the provision of such service through the Federal Communications Commission’s (FCC) Lifeline program (a program that provides discounts on monthly telephone service to qualifying low-income consumers).

      So Maggie why would Rep from AR, FL, LA be sponsoring bills in WA?

      “A cell phone is not a necessity.”

      Then why are taxpayors being forced to pay for them?

      $9 birth control isn’t a necessity but they are getting stuck with that bill as well.

    • Nate Ogden says:

      “The Court is not supposed to re-write legilslation passed by our elected representatives.”

      Does that apply to aborition as well? Gay rights? Gun laws?

      What your really saying is the Court is not supposed to re-write legislation passed by elected democrats, we should have stacked the court when FDR had the chance.

  7. Maggie Mahar says:

    Water Hall writes: “a jurisprudence that indulges nostalgic daydreams of yeoman farmers and town halls is probably closer to nihilism than virtue.”
    Yes.

  8. rbaer says:

    If the Supreme court discussion is not a reflexion of both destructive partisanship and judicial activism, then what is?

  9. DeterminedMD says:

    The sheer audacity to challenge Democrats and their agenda. Just like how it played out with the Republicans and the Iraqi invasion.

    One party rule is not democracy but tyranny pathetically disguised as representation. And no surprise to read Ms Mahar ask the question.

    At least she reads the accompanying thread.

  10. Maggie Mahar says:

    Nate– Sorry, I was confused because you seemed to indicate it was a 2008 law– and that led me to the Washington law.

    Here is the law you are referring to. (I’m quoting from the Forbes article that you cited in your second comment):

    “The federal program dates back to 1996; it was part of the Telecommunications Act of 1996. that subsidized coverage for families who can’t afford it so that they have links to emergency and government services”

    So this is a law that helps low-income customers have access to necessary,
    “basic telephone service”" (Forbes desription.) Forbes adds:. It’s divided into two programs: Link-Up America and Lifeline.

    Link-Up assists consumers with the installation costs of phone service. The program pays up to $30 of the cost of installation and up to $200 in the form of a one year, interest-free loan for additional installation costs.

    Lifeline provides discounts on basic monthly service at a primary residence for qualified telephone customers. These discounts can be up to $10.00 per month, or more for certain Native Americans. Generally, to qualify, your income must be at or below 135% of the federal poverty guidelines (these vary by location and size of family but for comparison, rings in at $22,350 for a family of four in the lower 48).

    ******NOTE:” In some instances, coverage may include discounts for cell phone service instead of land lines at primary residences because realistically, cell phone service is less expensive in some areas than traditional service” (Nate, why did you leave that part out?)

    In other words, low-income families are getting cell phones only if they are cheaper than basic service. We are not talking about fancy phones.

    • Nate Ogden says:

      nice try spinning there.

      Your words;

      ““No,” because cell phones are not a necessity. If someone doesn’t have one, the rest of us don’t feel obliged to buy one for him.”

      Which is it Maggie are we obliged or aren’t we? Your latest story appears to be we do feel obliged when the cell phone is cheaper then a land phone. I don’t see you qualifying your original statement for how fancy the phones are. You said very clearly the rest of us don’t feel obliged to buy one for them.

      Maybe we don’t feel obliged but we sure are obligated by the federal government. Just like they are trying to obligate is to buy insurance for other people.

      You were wrong, once again, I corrected you once again, just admit you were running at the mouth as usual and have no idea what your talking about.

      We do buy poor people cell phones, period.

      • rbaer says:

        What’s the big deal about that? Even if supporting cell phones for poor people is ludicrous (there are several common sense ideas that come into mind, although I am not saying I am in favour of the idea), that policy has not much to do with other, unrelated policies that are discussed here. This argument does not even deserve a response in the first place, although it obviously makes you proud.

        • spike says:

          Nate is just trying to catch Maggie in a lie so he can keep playing the victim.

          The spirit of Maggie’s statement was 100% true, the letter was 99% true because she failed to mention that when cell phones are cheaper than land lines, the government would rather sponsor cell phones.

          Imagine the outcry from Nate if the government was only supporting landlines even in markets where landlines were double the cost of cell phones.

          It has nothing to do with anything except Nate trying to find any way possible to criticize something he probably knows is correct but is also unpalatable to him.

          • Nate Ogden says:

            why do we provide landline? My concern is not about the realtive cost of one to the other we should not be providing either.

            And your both still wrong in claiming we only provide them when they are cheaper then landline, that is not a condition in most states.

            How to Qualify
            The process to qualify for Lifeline Service depends on the State you live in. In general, you may qualify if…

            1.You already participate in other State or Federal assistance program such as Federal Public Housing Assistance, Food Stamps and Medicaid.
            OR
            2.Your total household income is at or below 135% of the poverty guidelines set by your State and/or the Federal Government.
            AND
            3.No one in your household currently receives Lifeline Service through another phone carrier.
            4.You have a valid United States Postal Address. In order for us to ship you your free phone you must live at a residence that can receive mail from the US Post Office. Sorry, but P.O. Boxes cannot be accepted.

            Do you see anything about landline cost?

            And like all well written liberal welfare plans;

            http://www.cbsatlanta.com/story/17048072/your-money-wasted-fraud-in-free-cell-phone-program

            But CBS Atlanta News found multiple phones being given away to people who already had a free phone, and to people who don’t need them or even want them. And the more phones these companies give away, the more money you pay.

            “I signed up for two already, I got like two of them,” one woman said.

            The woman was in line to get her third free phone. In some cases, the people lining up for free phones admitted they already had three or four government-supported phones.

            The women are just a few of hundreds of people who received phones in the mail, even though they didn’t qualify for the federal government’s LifeLine program.

  11. pcb says:

    reasonable people can disagree about the constitutionality of the individual mandate.
    To imply that those who disagree with you on the issue are hopelessly partisan is unreasonable, Maggie.

    You’re better than this.

  12. Priscilla Chism says:

    Could hardly say it better myself!

    Moment of truth for Justice Roberts
    By: Jeffrey Rosen Politico
    March 28, 2012 10:27 PM EDT

    Before this week’s historic Supreme Court argument, conventional wisdom held that the court would uphold “Obamacare” — as its opponents call it — by a lopsided bipartisan margin. In one recent poll, Supreme Court lawyers and former Supreme Court clerks said there was only a 35 percent chance that the court would strike down the law.

    After the bruising oral argument Tuesday, however, when all the conservative justices seemed to express skepticism about the constitutionality of the health care mandate, conventional wisdom shifted: “Obamacare” is dead!

    If the court does, in fact, strike down the mandate by a 5-4 vote, conventional wisdom most likely will crystallize around a new narrative: The Supreme Court is all about politics.

    Ever since Bush v. Gore, Democrats will argue, conservative Supreme Court justices have voted their partisan interests. The health care decision, combined with the Citizens United case, striking down campaign finance reform, only clinches the argument.

    But is that narrative right? What is the relationship between decisions and the justices’ political preferences? The truth is that this relationship is more complicated than the new conventional wisdom suggests. Though broad currents of public opinion can influence the court, it’s only in exceptionally divisive cases that some justices seem guided by political instincts rather than their judicial philosophies.

    There’s no question that the conservative justices on the Roberts court have political leeway to strike down Obamacare because of its current unpopularity. According to a New York Times poll, two-thirds of Americans think the Supreme Court should strike down all or some of the health care law — even though majorities support some of its most important provisions.

    But if the conservative justices are careful students of history, they won’t strike down the mandate. History shows that the court gets into trouble when it strikes down national legislation on the basis of constitutional principles that majorities of the country intensely dispute. And only about 30 percent of Americans now think the court should overturn the mandate that everyone has to buy health insurance.

    Over the course of U.S. history, the court has indeed followed the broad currents of public opinion more often than not. For example, the 1954 Brown v. Board of Education decision, striking down school segregation, was popular with 54 percent of the country.

    But on the relatively rare occasions when the court has invalidated laws popular with national majorities – like the Citizens United decision, which 80 percent of the country opposed — its decisions have provoked political backlashes often followed by a drop in the court’s public legitimacy.

    The Roberts court justices are doubtless aware of the post-Citizens United public backlash. When the court began its term in October, according to the latest Gallup Poll, public approval of the court was at 46 percent, 15 points lower than just two years ago, before Citizens United was decided.

    Yet despite the famous aphorism of the fictional Mr. Dooley, few people believe the Supreme Court “follows the election returns” in the crude sense of reading public opinion polls. Instead, the justices seem influenced by public opinion in a far more subtle way. In cases where the justices have strong political preconceptions that they share with large segments of the public, they seem more likely to betray the judicial philosophies they have emphasized in less controversial cases.

    Consider Justice Antonin Scalia’s position in Bush v. Gore. Scalia has devoted his judicial career to the proposition that judges should decide cases based on the text and original understanding of the Constitution. Unless the document’s text clearly spoke to an issue, Scalia believes, judges should allow issues to be resolved by the political branches.

    In Bush v. Gore, however, Scalia reached the opposite conclusion. He endorsed a novel right to the equal treatment of ballots that was unequivocally inconsistent with the intention of the framers and supporters of the 14th Amendment, who believed that voting rights weren’t covered by the amendment and wanted to exclude judges entirely from deciding presidential elections.

    When pressed to justify this apparent inconsistency, Scalia first said the court needed to reach a pragmatic decision to avoid political chaos. Then, when challenged further, Scalia exclaimed that critics should “get over it.”

    Or consider Scalia’s apparent skepticism of the health care mandate during Tuesday’s oral argument. He has previously embraced a broad vision of congressional power that would seem comfortably to authorize the health care mandate. In 2004, he wrote a 6-3 opinion for the majority, saying Congress could prevent California from allowing people to grow marijuana for their own medicinal use — because this might affect the interstate market for pot.

    Before the Tuesday oral arguments, many observers said Scalia would very likely vote to uphold the health care mandate — because the decision not to buy health insurance has a far greater impact on the economy. During the argument, however, Scalia seemed relentlessly skeptical of the mandate.

    If he does vote to strike it down, Scalia will doubtless convince himself that his vote is consistent with his previously expressed constitutional principles. But, as in Bush v. Gore, Americans who don’t share his political convictions will have a hard time believing him.

    When I teach constitutional law, I always start by telling students: Don’t assume the Supreme Court is all about politics. If that’s the way you view constitutional cases, you’ll miss everything that’s constraining, and exciting, about constitutional law — which often does press judges to separate their political convictions from their constitutional conclusions.

    But the truth is that there are a handful of cases — like Bush v. Gore — that are hard to justify in anything but political terms. Sometimes, justices have such intense political convictions that they seem unable to restrain themselves. My hopeful account of these cases is that they are exceptions that prove the rule.

    But I also hope that the health care lawsuit isn’t another of those exceptions. When Chief Justice John Roberts began his tenure, he said he wanted to be remembered for presiding over a court that reached narrow unanimous opinions — transcending the partisan divisions that have polarized Washington in Congress and the executive branch.

    So far, Roberts has had mixed success.

    That’s what makes the health care cases a moment of truth for the chief justice. If Roberts presides over a court that strikes down health care reform by a 5-4 vote, his ambition of transcending politics on the Supreme Court will have to be judged a failure.

    If, by contrast, Roberts can find a way of helping his conservative colleagues to overcome their political convictions and uphold health care reform on narrow grounds, even his critics will have to admit that he has achieved a real success.

    Uniter or divider — the choice is his.

    Jeffrey Rosen, a law professor at The George Washington University, is the legal affairs editor of the New Republic and co-editor of Constitution 3.0: Freedom and Technological Change.

    © 2012 POLITICO LLC

    • BobbyG says:

      “Scalia has devoted his judicial career to the proposition that judges should decide cases based on the text and original understanding of the Constitution.”
      __

      a.k.a. The Ouija Board Theory of Jurisprudence.

  13. Maggie Mahar says:

    Priscilla & PCB

    Thanks very much for sending Rosen’s piece. It is, as you suggest, excellent.

    I think we should all pay much more attentnoin to what law professors and legal scholars tells us about what
    the constitution actually says, and how it relates to the health reform legislation.

    Of course, they don’t all agree. But if you read enough Law Review articles, and comments by those who actually study the constitution, it seems clear that the majority don’t believe that the constitution provides a basis for overturning the law. This includes politically conservative legal scholars.

    I really do think that Roberts cares about the integrity of the court.

    As Rosen points out: “But on the relatively rare occasions when the court has invalidated laws popular with national majorities – like the Citizens United decision, which 80 percent of the country opposed — its decisions have provoked political backlashes often followed by a drop in the court’s public legitimacy.

    “The Roberts court justices are doubtless aware of the post-Citizens United public backlash. When the court began its term in October, according to the latest Gallup Poll, public approval of the court was at 46 percent, 15 points lower than just two years ago, before Citizens United was decided
    .. . .
    “When Chief Justice John Roberts began his tenure, he said he wanted to be remembered for presiding over a court that reached narrow unanimous opinions — transcending the partisan divisions that have polarized Washington in Congress and the executive branch.

    “So far, Roberts has had mixed success.

    “That’s what makes the health care cases a moment of truth for the chief justice. If Roberts presides over a court that strikes down health care reform by a 5-4 vote, his ambition of transcending politics on the Supreme Court will have to be judged a failure.

    “If, by contrast, Roberts can find a way of helping his conservative colleagues to overcome their political convictions and uphold health care reform on narrow grounds, even his critics will have to admit that he has achieved a real success . ..”

    PCB–

    As I indicate in my reply to Priscilla, I am basing my view that the constitution does not support the challenge after reading a great many legal arguments written by constiutional scholars who have spent their lives studying and teaching the constitution.

    The majoirty view is that if the judges strike down the law they will be voting their politics, not the constitution.

    I respect the expertise of people who have studied something in depth., and
    I would add that highlly respected conservative judges agree. As The Economist (haredly a liberal rag) points out: “just a few weeks ago there were quite a few conservative legal scholars who believed the court would confirm the law’s constitutionality by a wide margin.” http://www.economist.com/blogs/democracyinamerica/2012/03/obamacare-and-supreme-court-0

    At this point, the subject has become politicized, but the constitution itself hasn’t changed in the past few weeks.

    • Nate Ogden says:

      Is the court suppose to follow the constitution or popular sentiment as portrayed by the liberal media? Their job is not to sway with public opinion but to uphold our laws. Regardless of what the public thinks the facts don’t change.

      “I think we should all pay much more attentnoin to what law professors and legal scholars tells us”

      Why because the vast majority of them are liberal and agree with you? Why would I care what some law professor or legal scholar in their ivory tower says? I can read the Constitution myself, I don’t need their biased guidence on what I am supposed to think.

      What your asking is for all the common folks to stop thinking for themselves and do what they are told by those who supposedly know what is best for them. No thanks.

      ““If, by contrast, Roberts can find a way of helping his conservative colleagues to overcome their political convictions and uphold health care reform on narrow grounds, even his critics will have to admit that he has achieved a real success”

      Better yet, if we he could the 4 liberal justices to put down their political blinders and vote with the public and the conservatives and strike it all down he would not only have acheived success but pleased the majority at large. Funny how the liberals changing their vote is never an option, why is that Maggie? Why do conservatives always have to defer to the liberal agenda?

  14. BobbyG says:

    “I can read the Constitution myself”
    __

    You just don’t get to impose YOUR interpretation of it on everyone else. Not jour job.

    “Why do conservatives always have to defer to the liberal agenda?”

    Like they did, uh, in Citizens United?

  15. Peter says:

    I wonder if you think someone in power will read this swill and be swayed by your argument?

  16. The article rightly points out the absolute dearth of legal scholars who supported an argument against constitutionality. In addition to my duties as Managing Editor of Health Reform Watch.com, I am also the media liaison for my law school. Reporters called me looking for a law professor–constitutional law, health law or other– who took the unconstitutional position. Reporters called from everywhere– there were simply almost none to be had. One can try to dismiss this dearth as just a matter of out of touch ivory tower intellectualism, but all? Seriously, almost no one held this position–and this is among the best legal minds the country has to offer who live and breath the law every day of the year. Perhaps the journalistic balance in this instance might have included, “Notably, it took a herculean effort to find a legal academic willing to support the idea that this provision of the ACA is unconstitutional, but we were able to get commentary from….” In this instance, it is not, I believe, a lack of objectivity to point out the view espoused is a lonesome one. Having said that, Ms. Mahar is right to point to something else at play– perhaps one of the most effective legal PR campaigns in, at least recent, history.

  17. DeterminedMD says:

    “You are either with us, or against us”. If you are a Sith Lord, please go to the back of the room, we will direct you to the Galactic Empire room shortly.

    You know what really makes my blood boil? Hearing the very Democrats who literally bitches moaned how the Republicans ran roughshod over the Democrats to push the war and Patriot Act on the country, and then did the exact same crap when Democrats were the one part rule.

    I’ll ask it yet again: who is worse, the guy who tells you he doesn’t give a damn about you, or the guy who says he cares and then punches you in the back of the head when you turn. The Democrats are the latter.

    How much do you pocket in writing these posts, Ms Mahar? You dislike me because I call you on it, and it must be annoying when people like me focus on the messager who is claiming no agenda.

    Denial, projection, and minimizing, the last refuges of political scoundrels!

  18. DeterminedMD says:

    Should say “…literally bitched & moaned…”

    Sorry, proof reading from an iPod sucks.

  19. John Ballard says:

    You seem to have hit a nerve, Maggie.
    More anesthetic next time…

    As for competing agendas, of two choices — waging war or advancing an effort to furnish better health care for the uninsured — I like the second. The jury is still out on health care reform but the war turns out to have been another Vietnam. But that’s just me, one of those stinking old Yellow Dog Democrat Liberals.

    • Nate Ogden says:

      would you rather we have waged war with Afganistan in 2000 rather than 2001 or is all war bad?

      • John Ballard says:

        I’m not a good person to answer that question. I find all wars disagreeable.
        I was drafted as a conscientious objector during the Vietnam Era and spent two years as an X-ray Tech in the Army Medical Service Corps.

        • Nate Ogden says:

          I don’t think many people would disagree with you, war is terrible and should be avoided at all cost. Sadly in life at times we are forced to do bad things to avoid much worse.

          Saddam was going to have to be taken out eventually, he already killed hundreds of thousands personally and responsbile for a million deaths. If we didn’t do it when we did we would have had to do it later. Ideally we would have done it in the 90s the first time we were there. It would have saved going back a second time.

  20. Maggie Mahar says:

    Miichael ricciardelli–

    Thank you for providing some hard fact about what legal scholars think. I have just one question (see below)

    First, you wrote: “The article rightly points out the absolute dearth of legal scholars who supported an argument against constitutionality. In addition to my duties as Managing Editor of Health Reform Watch.com, I am also the media liaison for my law school. Reporters called me looking for a law professor–constitutional law, health law or other– who took the unconstitutional position. Reporters called from everywhere– there were simply almost none to be had. One can try to dismiss this dearth as just a matter of out of touch ivory tower intellectualism, but all?

    Here’s my question: Some argue that law schools professors are mainly liberals, and so of course support Obamacare.

    It’s my impression that while the majority of professors in law schools (and in many other universitiy departments ) were liberals 25 or 30 years ago, that is no longer the case.

    I don’t know if I am correct . Do you have any information on how how the politics of law school professors have changed over the years?

    • Sorry, but I don’t have any hard data to share on law school profs from 25 years ago– but there is now a flourishing group of conservative legal scholars–the blogosphere is relatively full of them, there are a number of them here at Seton Hall Law. This post below I cribbed from Prof Bainbridge’s blog sheds, I think, some light. Legal scholarship, unlike policy, ultimately, shouldn’t be a matter of ideology– it’s largely textual/ analysis– but certainly, ideology can be a factor– and men and women of good conscious can disagree. Law is not a matter of what “I like,” it’s what “it is.” What’s most surprising to me in this instance, however, is that of that flourishing conservative bar, almost no one thought the individual mandate was unconstitutional. And to dismiss all law professors, engaged in a legal/textual analysis, as “lefties” is just ridiculous. Bainbridge quoting Leiter

      The Most Conservative Law Faculties

      Brian Leiter:

      Among the top law schools, Northwestern University and University of Virginia are clearly both the farthest to the right and with the most prominent scholars, but Harvard University isn’t far behind (with Goldsmith, Manning & Vermeule, among others). University of Notre Dame is right up there, and so too George Washington University, University of San Diego, and George Mason University. Chapman University and Brigham Young University would also have to be mentioned as centers of conservative legal scholarship, though probably not as prominent as the preceding. Most, but not all, of the top law schools have at least a couple of prominent legal scholars “on the right”–e.g., Epstein & E. Posner at Chicago, Baker & Rodriguez at Texas, Bainbridge & Volokh at UCLA, Barnett & Rosenkranz at Georgetown, Benjamin & Young at Duke, Bobbitt (on some issues) & Monaghan at Columbia, among others–and certainly the American right is better-represented on U.S. law faculties than the social democratic left, but that just speaks, again, to the indexical character of the terms “left” and “right,” or “liberal” and “conservative.”

      You’d have to have a very narrow definition of the ‘social democratc left” and a very broad definition of the right to say the former is less well represented on law faculties than the latter.

      Anyway, Brian continues:

      Of course, it is probably worth remembering that in most areas of scholarship and legal study, political ideology sheds almost no light on the substantive, analytical issues serious scholars and students must grapple with.

      Right.

  21. Maggie Mahar says:

    John–

    Yes, I do seem to have hit a nerve. But I’m not sure
    about the need to administer an anesthetic.

    As an editor told me years ago (Alan Abelson, at Barron’s):
    “If you draw blood, they won’t send you flowers. But it will
    mean that you have told the truth.”

    I do think that jouranlism should be all about truth-telling.

    And, I also believe that I need to develop a thicker skin, so that
    I am not bothered by personal attacks that have little to do with the facts at
    hand.

    Sometime, hitting a nerve means that

    • Nate Ogden says:

      “I need to develop a thicker skin, so that I am not bothered by personal attacks ”

      Like calling people that disagree with you misogynist?

  22. DeterminedMD says:

    Ha ha ha, hit a nerve, no, not really. Just illustrate the arrogance of poor representation that has no ego strength to acknowledge when mistakes and misjudgments were made.

    Oh, and also no respect for the powers of the three branch system that we seem to agree to live under as citizens. You know, my earlier kindergarten comment at another thread really does apply here. Like immature children, you try to change the rules when you don’t get your way.

    Except you don’t own the ball, you didn’t make the rules, and if you don’t want to play, get off the playground!

    By the way, what about the pure partisan attitude of your side of the court. Don’t comment about your allies, do ya!?

    You are all pathetic in your pure partisan platitudes and agendas, Democraps and Repugnocants!!!

  23. Nate Ogden says:

    The other view

    http://www.nypost.com/p/news/opinion/opedcolumnists/supreme_shock_for_la_la_libs_LkWBvHWTzeCs4gvA3hdHKJ

    That’s what happened this week. There appears to be no question in the mind of anyone who read the transcripts or listened to the oral arguments that the conservative lawyers and justices made mincemeat out of the Obama administration’s advocates and the liberal members of the court.

    This came as a startling shock to the liberals who write about the court.

    Jeffrey Toobin of the New Yorker and CNN confidently asserted on Charlie Rose at the beginning of the week that the court would rule 7-2, maybe even 8-1 in favor of ObamaCare. The previous week, he called the anti-ObamaCare arguments “really weak.”

    His view was echoed by an equally confident op-ed assertion by the veteran court reporter Linda Greenhouse, who in The New York Times declared the case against ObamaCare “analytically so weak that it dissolves on close inspection.”

  24. DeterminedMD says:

    Wait for it, folks, when someone in Congress utters an outright demeaning comment about the one or more of the Supreme Court Justices, maybe one of them will be wearing a hoodie or perhaps say something just clueless, like maybe “watch out conservative judges, you may have a Trayvon moment.”

    Again, the Democrats just disgust me with their florid ugly rhetoric that amounts to nothing more than “do what the hell we tell you, don’t even try to engage with what we do.” They just lowered the bar from what the Republicans stooped to earlier this millennium. And you know what, creating a war killing others outside our borders is reprehensible, but, ruining further the policies inside our borders is equally repugnant.

    But, you think anyone who has been in office more than 10 or so years in DC really gives a damn about the country? If you do, good luck with your representation!

  25. DeterminedMD says:

    By the way, Ms Mahar, did I miss your comment explaining the impartiality of your buddy Judge Kagan who has shown incredibly poor judicial oversight in not recusing herself from voting on this review?

    Again, it if benefits your point of view, it is not of mention. You are so pathetic in your crass partisan pontificating. But, at least your lack of responsible reporting of what your side to the struggle presents to the debate shows it is not about truth or fact, just defending the indefensible until we all have to retch from your platitudes of lies and half truths.

  26. Alice Svoboda says:

    I hear many comments about having the freedom to make one’s own decision about whether or not to have health insurance. I was always taught that with every right there came a responsibility, consequently, these same individuals should agree to not show up at the emergency room unless they are able to pay for their services. I’m sure they would be appalled if the ER demanded proof that they will be able to pay the bill before any treatment begins. I doubt that there are very many people who could pay for the medical treatment resulting from a traumatic accident. In reality, our compassion would never allow us to refuse treatment but I promise you, every one of us is paying for those who refuse to carry health insurance.

  27. Maggie Mahar says:

    Alice–

    Yes, exactly. With every right comes a responsibilty.

    As you say, “our compassion would never allow us to refuse treatment,”
    but that means that if some who can afford health insurance refuse to buy it ” everyone one of us is paying for them” when they become sick.

    (Under the reform law, we provide subsides for those who cannot
    afford insurance.)

  28. Maggie Mahar says:

    Michael–

    Thank you for your reply on the question fo whether law schools are dominated by liberals.

    You write “What’s most surprising to me in this instance . . . , is that of the flourishing conservative bar, almost no one thought the individual mandate was unconstitutional. And to dismiss all law professors, engaged in a legal/textual analysis, as ”lefties’ is just ridiculous..”

    • Nate Ogden says:

      “of the flourishing conservative bar, almost no one thought the individual mandate was unconstitutional. ”

      Why are are the conservative attorney blogs laughing at how in denial the liberals are? Almost no one and I have seen 3-4 in a quick search that clearly are.

      Calling BS on this one.

      maybe locked in your secure little echo chamber screaming la la la you didn’t hear any, but there are plenty out there. Hint google la la la and you will find them deconstrusting your BS as you spin

      • should have specifically said flourishing professorial conservative bar–though I thought it implicit, you’ll have to excuse me as i work a tremendous number of hours here in my little echo chamber.

        And the point is, that even the conservative professors–and there are conservative law professors– overwhelmingly thought the mandate was constitutional under S. Ct. precedent. Whether they liked it or not is largely not relative– precedentially speaking, this wasn’t even a close call among the professorial bar, conservatives included. And if you don’t think there is a conservative professorial bar, read Goldsmith or Volokh or any of the other profs listed above– and their scholarly work and blogs will invariably cite others.

        • Nate Ogden says:

          I read Volokh and Patterico regularly and both have had well reasoned arguments up since the beginning why it was not constitutional. I have read hundreds of legal opinions from conservatives on why it was unconstitutional.

          • hundreds? not from law professors.

          • Nate Ogden says:

            why are we limiting it to professors? We already established they lean heavily left and most aren’t smart enough to get real jobs thus the teaching.

            Are there even 100 conservative law professors in the country?

          • we are leaving it to law professors because that was the scope of my original comment, for which you “called B.S.”

            Having said that, you seem to have considerably more available free time in your echo chamber than I do in mine. Fare thee well.

        • Nate Ogden says:

          Have you read Volokh today?

          http://volokh.com/2012/03/30/why-did-legal-elites-underestimate-the-case-against-the-mandate/

          Many of the legal academics who ridiculed Randy Barnett’s work on the mandate, and who were relied upon by legal journalists and commentators, thought their schools were advancing viable legal claims in Rumsfeld v. FAIR. Oops. Premier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.

          I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy. At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court’s cases. Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for what the law should be. Constitutional scholarship in particular is increasingly focused on theory and less on the law. In some corners, it’s more important to reconcile one’s claims with the writings of John Rawls than the opinions of John Roberts.

    • Nate Ogden says:

      “Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia. The current Supreme Court has a right-leaning majority, but legal academia leans decidedly to the left. On many faculties their are few, if any, professors with any particular appreciation or understanding (let alone sympathy) for the jurisprudential views of a majority of the current justices. ”

      Sounds like I am not the only one that disagrees

  29. Nate Ogden says:

    http://volokh.com/2011/01/31/todays-florida-district-court-ruling-striking-down-the-obamacare-individual-mandate/

    “Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains the flaws in each.”

    One of the best parts of today’s opinion is Judge Vinson’s critique of the federal government’s argument that the mandate is constitutional under the Commerce Clause because the Clause gives it the power to regulate “economic decisions”:

    Judge Vinson has a similarly compelling answer to the government’s claim that choosing not to purchase health insurance is an “economic activity” because everyone participates in the health care market at some point:

    Vinson also notes that the mandate probably runs afoul of the five part test recently outlined by the Supreme Court in United States v. Comstock, though he ultimately does not base his ruling on this point. I advanced a similar interpretation of Comstock and its implications for the mandate case in this article (pp. 260-67).

    I thought there was no conservatives who thought the mandate was unconstitutional?

    UPDATE: Co-blogger Orin Kerr takes Judge Vinson to task for holding that the mandate is not “proper” because it leads to unlimited federal power. Orin claims that this is is inconsistent with the “words” of Supreme Court precedent, citing a dissent by Justice Thomas in Gonzales v. Raich. However, the words of actual Supreme Court precedent repeatedly emphasize that Congress’ power is not unlimited. For example, in United States v. Lopez, the Court emphasized that ““The Constitution . . . withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.” In its most recent Necessary and Proper Clause decision, United States v. Comstock, the Court similarly stated that there is no reason to “fear that our holding today confers on Congress a general ‘police power, which the Founders denied the National Government and reposed in the States’” (quoting United States v. Morrison); the Court emphasized that the regulation it was upholding was “narrow” in scope. Gonzales v. Raich itself gives Congress virtually unlimited power to regulate “economic activity,” but does not address the issue raised by the mandate case. Thus, if Judge Vinson is right that the federal government’s argument for the mandate would give Congress unlimited power, then the mandate indeed conflicts with the words of Supreme Court precedent.

    Orin is also wrong to suggest that Vinson “used a first principle to trump existing Supreme Court caselaw.” Vinson in fact discussed those precedents, including Raich, in great detail, and noted how the individual mandate case is distinguishable from them (e.g. – the discussion of Raich on pp. 36-44 of his opinion).

  30. BobbyG says:

    “Today’s ruling”? See date/time stamp: January 31, 2011 8:01 pm

    The word “news” means “new information.”

    (I know, it was just a sloppy cut ‘n paste)

    • Nate Ogden says:

      If you lack the intelligence to discuss the subject you revert to checking grammar and spelling?

      Let me serve you the logic sense you obviously lack it. The argument was rather or not conservative attorneys, bar members, professors, some debate as to which specifically we were discussing, thought the mandate was constitutional or not. Holding this belief Jan 31, 2011 is just as valid to that argument as stating that belief today. I would argue having this belief prior to hearing it argued in SCOTUS is more proof of my point.

      No the cut an paste was fine it was sloppy thinking, or lack there of, on your part.

      I keep forgetting I need to talk down to you or you get confused.

  31. DeterminedMD says:

    Just so you get the gist of the Democrat machine at hand, I hear on a Fox News report (yeah, Fox News is a news organization, I’m sure that will be attacked too) of a woman in Wisconsin who had a Support Walker sign in her car, and after refusing to remove it, got fired. Hmm, did management fire anyone in the same lot who had Recall Walker bumper stickers on theirs?

    Apparently not. This is an extension of what is Chicago/Obama style behaviors going on.

    Really, I find the title of this post to be so rude and dismissive. You ain’t gonna bully those of us who dissent with your perspective, ma’am.

  32. Maggie Mahar says:

    Everyone; Michael There are many interesting comments on this thread– thank you.

    Michael: You are right, Nate seems to have more time than any of us.

    Getting back to the question of the oral argument, and whether it signals that
    the law will be struck down:

    Henry T. Greely, Stanford professor of health law and policy says:

    “Both Verrilli and Kneedler, they didn’t look as good. They were stumbling for words, having a hard time coming up with crisp answers. It looked to me like Clement did the better job of oral advocacy.

    ***”But oral argument is a performance. It’s a performance that is vaguely related to the outcome of the case. It’s one window into one moment in a process.”

    “Right now I’d say it looks like there are clearly four justices in favor, three opposed and [Justice Anthony M.] Kennedy somewhere in between, and Chief Justice [John G.] Roberts with leeway to go either way…. I think on the individual mandate the chances are better that it will survive than go down. I would be surprised if Justice Kennedy wanted one of his most memorable acts to be this. Is this how he wants to be remembered? Look at his record on gay issues. I think he cares about his legacy.”

    Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute, a libertarian think tank weighs in:

    “Paul Clement has been brilliant, as expected, on all of the issues. The government was much weaker than I thought they would be, which surprised me…. The stances the government took and certain responses made by Verrilli and Kneedler could have been done better.

    “But I think it would be going much too far to say that even if the government did a terrible job, and I’m not saying that they did, that that necessarily lost them the case…. Perhaps the justices were predisposed to one side or the other and those predispositions were just confirmed.”

    Neal Katyal, Georgetown law professor and former acting solicitor general, May 2010-June 2011 adds:

    “These are extremely difficult and complex arguments and I think the advocates, both from the government and the states and the friends of the court, all did a really terrific job in articulating the issues.

    “At the end of the day, it is a very hard thing to ask the federal court to strike down any act of Congress, particularly one like this that has the eyes of so many Americans on it. One thing here is that a lot of the concerns are policy concerns against the act and not constitutional concerns. In circumstances like this, in which there is no clear constitutional law that blocks the government from doing what it is doing, it is going to be very difficult to strike it down.
    (This is all from the L.A. Times)

    I think the point that oral arguments are a “performance” is important. In the end, it really doesn’t matter who stuttered or coughed. Jeffrey Toobin, who has covered the court for the New Yorker for years, argues that what is said in oral arugment accounts for “5%” of the decision.

  33. Maggie Mahar says:

    A postcript on oral arguments and how this case has been politicized.

    This just reported on Bloomberg News:
    “Republicans Tampered With Court Audio in Obama Attack Ad”

    ” Republican Party Internet advertisement altered the audio of U.S. Supreme Court (1000L) oral arguments in an attack on President Barack Obama’s health-care law.

    “In a web ad circulated this week, the Republican National Committee excerpts the opening seconds of the March 27 presentation by Obama’s top Supreme Court lawyer, Solicitor General Donald Verrilli. In the ad, he is heard struggling for words and twice stopping to drink water

    “Obamacare,” the ad concludes, in words shown against a photograph of the high court. “It’s a tough sell.”

    “A review of a transcript and recordings of those moments shows that Verrilli took a sip of water just once, paused for a much briefer period and completed his thought — rather than stuttering and trailing off as heard in the edited version.

    “The ad marks a blurring of the line between the law and politics, in which the nation’s highest court — and the justices and lawyers who decide and argue cases — are becoming fodder for Republicans’ and Democrats’ arguments over the validity of the president’s signature domestic legislative achievement
    Recordings of the court proceedings reviewed by Bloomberg News reveal that the audio has been edited. While Verrilli paused once to drink water during the opening moments of his presentation, he stopped talking for only a few seconds before continuing with his argument. In the RNC ad, he pauses for about 20 seconds, coughs, sips water and stutters.

    “In the RNC’s transcript of its ad, it quotes Verrilli as follows: “For more than 80 percent of Americans, the ah insurance system does provide effective access [pause]. Excuse me. Ah [cough] it ah be-be because the ah the ah the [pause]. Excuse me.”

    “In the actual proceedings, Verrilli finished his thought. “For more than 80 percent of Americans, the, ah, insurance system does provide effective access,” Verrilli says, pausing briefly and saying, “Excuse me. But for more than 40 million who do not have access to health insurance, either through their employer or through government programs such as Medicare or Medicaid, the system does not work.”

    Recordings of the court proceedings reviewed by Bloomberg News reveal that the audio has been edited. While Verrilli paused once to drink water during the opening moments of his presentation, he stopped talking for only a few seconds before continuing with his argument. In the RNC ad, he pauses for about 20 seconds, coughs, sips water and stutters.

    In the RNC’s transcript of its ad, it quotes Verrilli as follows: “For more than 80 percent of Americans, the ah insurance system does provide effective access [pause]. Excuse me. Ah [cough] it ah be-be because the ah the ah the [pause]. Excuse me.”

    In the actual proceedings, Verrilli finished his thought. “For more than 80 percent of Americans, the, ah, insurance system does provide effective access,” Verrilli says, pausing briefly and saying, “Excuse me. But for more than 40 million who do not have access to health insurance, either through their employer or through government programs such as Medicare or Medicaid, the system does not work.”

    Recordings of the court proceedings reviewed by Bloomberg News reveal that the audio has been edited. While Verrilli paused once to drink water during the opening moments of his presentation, he stopped talking for only a few seconds before continuing with his argument. In the RNC ad, he pauses for about 20 seconds, coughs, sips water and stutters.

    In the RNC’s transcript of its ad, it quotes Verrilli as follows: “For more than 80 percent of Americans, the ah insurance system does provide effective access [pause]. Excuse me. Ah [cough] it ah be-be because the ah the ah the [pause]. Excuse me.”

    “In the actual proceedings, Verrilli finished his thought. “For more than 80 percent of Americans, the, ah, insurance system does provide effective access,” Verrilli says, pausing briefly and saying, “Excuse me. But for more than 40 million who do not have access to health insurance, either through their employer or through government programs such as Medicare or Medicaid, the system does not work.
    “While such unflattering editing isn’t unusual for a political campaign advertisement, it is atypical in the legal world.”

  34. pcb says:

    from Neal Katyal in your post above: “These are extremely difficult and complex arguments and I think the advocates, both from the government and the states and the friends of the court, all did a really terrific job in articulating the issues.”

    So Maggie, if these are “extremely difficult and complex arguments” then is it possible that intelligent individuals could reasonably disagree on what the proper outcome is re: individual mandate? Or are you sticking to “we’re right, and they’re partisan?”

  35. Maggie Mahar says:

    PCB–I’m simply impressed by the fact that the vast majoirty of legal scholars– including higihly respected conservatives– all of whom know the constitution far better than I say that there is no basis in the constitution for striking down the law.

    Sometimes I’m not happy with what constitutional scholars say that the constritutoin will or will not allow because I would like to see another policy outcome. But I repsect the fact that , unlike the rest of us, they have spent years studying the constitution.

    That said, there are legal scholars who believe that we should interpret the constitution to mean what the original writers thought it meant, ignoring the fact that they couldn’t begin to predict or imagine the complexities of the world we live in now. If you take that point of view, then trying to match up what they thought then to today’s realities can become complicated.

    See Mark Hall’s comments, quoted by Bobby G in his March 29, 2012 at 9:40 am coimment on this thread.

    As J.D. Kleinke says, “Mark Hall nails it.” He goes to the heart of the
    real debate between constitutional scholars. I agree with Hall, who writes:

    The ideological question that is the central to our government is whether the Constitution should reflect the country of the 21st century or the 18th century. Thomas and Scalia are more than willing to turn back the clock to an agrarian republic where simplicity ruled the lives of citizens. Today, it’s complexity that rules, mostly because of industrialization and economic stratification, and as a result of that, a citizenry ruled by economic forces the Founding Fathers couldn’t foresee. A Constitution that doesn’t reflect the physical reality of this republic is a straitjacket. And a jurisprudence that indulges nostalgic daydreams of yeoman farmers and town halls is probably closer to nihilism than virtue.”

    In other words Thomas and Scalia are at best, totally impractical, and at worst, simply wrong.

    Also, while intelligent people can disagree on many things, I don’t think many people think of Thomas as “intelligent.” As for Scalia, he made it clear during oral arugments that he has no idea how long the legislation is, or what is in the final version. This really undermines the credibiitiy of anything he says about it.

  36. pcb says:

    Sounds like you’re sticking to “we’re right, and they’re partisan.”

    For the MMahar record:
    Clarence Thomas is not intelligent. And Scalia has no credibility.

    Intelligent people will disagree with you. People can have reasonable opinions that don’t support your politics.

  37. Maggie Mahar says:

    Bobby G. & Pcb–

    Bobby G,– Thanks for sending the link to this Time Magazine
    article http://ideas.time.com/2012/03/26/why-the-supreme-court-should-uphold-the-health-care-law-9-0 Others mighit find it interesting I would add that Time Magazine is not usually seen as a distinctly liberal or partisan magzine. It’s pretty mainstream.

    pcb–I’m not saying “liberals are right” I’m saying that legal scholars are right. and as pointed out above, lawschools are hardly a hotbed of liberalism.

    And I didn’t say Scalia had no credibility. I said he undermined his own credibility when he made this comments.

    But you and I will l just have to agree to disagree on this.

  38. DeterminedMD says:

    Gotta give credit to the authors of this site, and to Ms Mahar for allowing a post or even more gutsy, providing one spontaneously, as the thread just keeps goin’ and goin’ like that bunny!

    Let’s have a moment of pure candor, both Scalia and Thomas are as equally partisan and non negotiable as Sotomayor and Kagan. So just attacking one side of the equation is intellectually dishonest. If you want to be taken seriously and respectfully as a commenter who is championing a cause that is really about the better of society, can the partisan commentary overtly, please!

    But I still bet a good chunk of change you are stuck in someone’s back pocket, and probably rather enjoy the view. Good for you if you do! Life is short, enjoy the ride if you can! Until you realize that there is a cliff ahead?

    Hey, I still look forward to reading active providers telling us that PPACA will make the country a better place. I just want to be there when they wake up!

  39. MD as HELL says:

    “The ideological question that is the central to our government is whether the Constitution should reflect the country of the 21st century or the 18th century.”

    This is the wrong question.

    The correct question: “The ideological question that is the central to our FREEDOM is whether the Constitution should reflect the country of the 21st century or the 18th century.”

    The Constitution establishes a federation of states, each with its own government. The states each maintain (or should maintain) more authority over its citizens than does the federal government.

    Mitt Romney rightly advocates for states to determine healthcare reform for themselves. If not, then who needs states?

    Obama is not the Governor of the USA. He is not the Mayor of USAopolis. Every advocate of this law writes as if there is only one level of government.

    This law is against the US Constitution, a brilliant document that hogties the zealots and tyrants of this century just as was intended. Freedom from the government is just as precious today as then, only much more difficult to maintain. If we do not keep it, it will be a long time before it happens again.

  40. There are 60 million people in the United States who do not have affordable health care. When we finally get afordable health care for many of those needy people. Uncaring people try to take it away like 2,000 years ago uncaring people took our beloved Lord Jesus Christ away from the poor who needed him. But unlike Jesus who continues to live in our faith. when affordable health care goes. We will revert back to the way it was. 60 million people will be without health care and those people will continue to be ridiculed by uncaring people. I hope the Supreme Court does not fall in the uncaring category. Think before you leap Supreme Court. The judgement you judge you may just be judged when the “Highest Court in Heaven” judges you.

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