November 30, 2015

Obamacare before the Supreme Court: “The Emperor Has No Clothes!”

Courtroom illustration shows Deputy Solicitor General Edwin Kneedler speaking to Justice Antonin Scalia and Chief Justice John Roberts of the U.S. Supreme Court in Washington

In a case of “the Emperor has no clothes,” the justices played the part of the skeptic to the Obama Administration’s protestations of Obamacare’s constitutionality.  With the oral arguments on constitutionality of the Affordable Care Act over, let’s take a look back at the reactions to the arguments:

First, the crux of the argument? That the government cannot regulate “inactivity,” an angle that has been pushed by Georgetown professor Randy Barnett:

On Monday, as the court began three days of arguments, questioning by the nine justices suggested they were ready to review the law now rather than wait until it has fully kicked in. That lays the groundwork for arguments for the challenge championed by Professor Barnett: that Congress’s power to set rules for commerce does not extend to regulating “inactivity,” like choosing not to be insured.

Apparently, the Supreme Court is buying the argument, much to the Obama Administration’s dismay.

In “Obama’s Supreme Court Disaster,” Adam Serwer says that the government’s lawyer Donald Verilli should be glad that the Supreme Court doesn’t allow cameras in the court room; his performance was that bad.

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism’s biggest domestic accomplishment since the 1960s—and one that may well have doubled as its eulogy.

Investors Business Daily feels bad for Verilli, but doesn’t blame him. The Affordable Care Act just isn’t constitutional, the editorials says.

We almost felt sorry for Donald Verrilli, the solicitor general who had to defend the constitutionally indefensible. Over three days of intense interrogation by nine Supreme Court justices, Verrilli failed to muster a single coherent, reasonable argument in support of the ObamaCare law’s constitutionality.

Instead, his shambling, unfocused talking points left the government case in disarray — underscoring what a poorly conceived, badly designed law this was in the first place, and why it must be overturned.

Some think that the disasterous arguments have put the Obama Administration on the defensive over the heart of Obamacare, the individual mandate on Americans to buy healthcare insurance.

That’s a purely political argument to a constitutional question. [White House Press deputy press secretary] Earnest  offered no defense along the lines of the precedential history of Congress and the commerce clause. It is the reach and scope of commerce-clause authority that is at the heart of the high court’s scrutiny of the health care law.

A week ago, ACA supporters were looking forward to a triumph. Now, they’re counting their losses. What happened?

Perhaps the most telling moment was during a question from Justice Kennedy. Ilya Shapiro describes it:

By this point the government’s head appellate advocate was on his heels, dodging increasingly skeptical queries, until Justice Kennedy delivered what in poker would be seen as the key “tell”:

JUSTICE KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Although you can’t hear it on the audio recording, the audience gasped.

Just like that, the headlines started changing.

The law isn’t dead, yet though, say supporters.

As Mark Twain might say, reports of Obamacare’s demise are greatly exaggerated. While the conservative justices expressed considerable reservations about the law’s scope, Justice Kennedy, the key swing vote, also noted, near the very end of the argument, that the unique context of the healthcare market may be sufficient to validate the “individual mandate.” The biggest challenge the government has faced in defending the law has been the articulation of a limiting principle, and by argument’s end it seemed that Justice Kennedy might have heard one that he could sign on to. If he does vote to uphold the law, it’s possible that Chief Justice Roberts will join him, in the interest of not having the case decided by a single vote, in which case the vote would be 6-3.

On the other hand, Dr. Milton Wolf in the Washington Times is more than sanguine about the demise of Obamacare. He’s predicting complete overturn, and, if not, the downfall of America.

The die is cast: Obamacare will not survive. This is not a prediction of how the Supreme Court will rule on President Obama’s health care takeover, mind you. It’s the harsh reality that if Obamacare does not die a judicial or political death – or better yet, both – it will die an economic death, and if it does, it will take America down with it.

Obamacare’s costs are exploding in the land where budgets already have burst. The $900 billion bargain-basement 10-year cost estimate that Mr. Obama promised for his overhaul recently ballooned to $1.8 trillion. Of course, these are still just estimates, and considering that the government underestimatedMedicare’s cost by a factor of 10, who really knows how massive the final price tag will be?

Welcome to the United States of Greece, where our $15.6 trillion national debt has surpassed the size of our total economy.

Which begs the question: if not Obamacare, what? Healthcare reform is clearly necessary. In the Chicago Tribune,

“One way or another, Congress will have to revisit it in toto,” Justice Antonin Scalia said of the health law.

One way or another.

That should be a clarion call in Washington. The prospect that the court will strike down all or part of the law known as Obamacare hands political leaders of both parties a formidable challenge — and a vast opportunity: a second chance to get health care reform right.

On that point, James Pethokoukis asks “What will Republicans do if the Supreme Court kills healthcare” reform and suggests that perhaps combining Rep. Paul Ryan’s plan (block grants to states for Medicare0 with future president Mitt Romney’s plan (known as the “Hubbard Plan“) might be workable.

The Hubbard Plan has five elements: 1) allow all Americans to deduct from income taxes all their healthcare expenditures—premiums, employee contributions, out-of-pocket costs, etc.; 2) deregulate insurance markets to foster nationwide, portable health insurance; c) making health information more available; d) control anti-competitive behavior such as hospital mergers; e) malpractice reform.

In the meantime, stay tuned. The law hasn’t been overturned, yet, and still may stand. While you’re waiting, jog on over to the Sweaty Federalist for his snark on some of the arguments being made to uphold the law.

[AEI] [Glenn Hubbard] [Mother Jones] [Washington Times] [Investors Business Daily] [National Journal] [The Nation] [Chicago Tribune] [New York Times]

And the funniest guy on the Supreme Court is…


Image via Wikipedia

All work and no play makes Jack a dull boy. And Chief Justice Roberts has taken that to heart.

On Monday, while the Supreme Court was taking oral arguments and handing down opinions, the Chief took several opportunities to poke fun and to shoot off a witty question.

After handing down a unanimous opinion rejecting AT&T’s argument that because corporations can be considered persons for free speech purposes, they can also be considered to have privacy rights like persons, too, Roberts, writing for the Court, took AT&T to task, denying that corporations have anything like “personal privacy” for purposes of FOIA (Freedom of Information Act). As reported by Slate writer Dahlia Lithwick, the Chief had started during oral arguments for the case:

[T]he chief spent the better part of the hour poking fun at AT&T’s claim that the adjective personal means the same thing as the noun person, such that the statute’s treatment of corporations as “persons” means that corporations are also somehow capable of getting “personal.” As he explained at argument, that claim makes no sense. “I tried to sit down and come up with other examples where the adjective was very different from the root noun,” he observed at the time. “It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn’t have much to do with craftSquirrelsquirrely. Right? I mean, pastor—you have a pastor and pastoral. Same root, totally different.”

It didn’t stop at oral arguments, either. The opinion took a jab, too.

“The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.”

Catch the article, including when Justice Scalia got into the act, too, over at

APROPOS: court artist Art Lien added a few extra flourishes to his work on Monday to accentuate the lighter mood, drawing Justice Scalia as a cat and Chief Justice Roberts with a cob of corn in his hand.

Justice Alito versus…the Supreme Court?

Justice Alito wears his heart on his sleeve. And he’s not afraid to take on the whole court to do it.

Yesterday, Justice Alito was the lone dissenting voice in the Supreme Court’s decision to allow Westboro Baptists to protest at military funerals. As Josh Blackman points out, though, it’s not his first time.

Last term, the Court decided United States v. Stevens which considered the constitutionality of a statute that criminalized the distribution of so-called “crush videos” (basically videos of killing cute fuzzy animals). This term, in Snyder v. Phelps, the Court decided whether the protests of the Westboro Baptists at the funeral of slain Marine Matthew Snyder were constitutionally protected. In both cases, 8 Justices found that the laws were unconstitutional. In both cases Chief Justice Roberts wrote a very narrow opinion protecting free speech, but leaving many questions open. In both cases, Justice Alito was the lone dissenter.

In each, his dissents have been emotional, leading to questions whether they are motivated by law or by emotion.

To quote from Snyder:

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.
Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church,approached as closely as they could without trespassing,and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity theWestboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree inTucson—proclaiming that she was “better off dead”11— their announcement was national news,12 and the church was able to obtain free air time on the radio in exchange for canceling its protest.13

Balancing the rights of all parties is a difficult act at best. Adding the context of military funerals only complicates the issue. However, the questions remain: should justices decisions carry such heavy emotional appeal? Or should justice be blind and bereft of emotion?

Last: did all eight get it wrong? Or is Justice Alito up in the night?

(h/t Josh Blackman)

Life at 133 questions an hour; or, do the Supremes really care what the lawyers think?

Official portrait of Supreme Court Justice Cla...

Image via Wikipedia

Curiously, to many, Justice Clarence Thomas rarely asks questions during oral arguments at the Supreme Court.

If at all.

Here’s a run down of his stats, as well as some other interesting numbers related

to questioning by Supreme Court Justices (according to Constitutional Daily):

5 – Years Clarence Thomas has gone without asking a question in the Supreme Court.

133 – Average questions per hour asked by Supreme Court justices.

2.22 – Average questions per minute.

209 – Total questions in Thomas’s favorite movie, Saving Private Ryan.

1.24 – Average questions per minute.

64% – Overall odds of winning a reversal in the Supreme Court.

39% – Odds of winning a reversal if asked 50 questions more than opposing counsel.

18% – Odds of winning a reversal if asked 94 question more than opposing counsel.

1 – Justices that have gone an entire term without asking a question.

And here is my favorite:

0 – Answers the Justices are sincerely interested in.

As it turns out, getting a lot of questions from the Supremes does not mean that they are interested in your reasoning. Quite the contrary. It’s more likely they don’t care.

A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side would win a case in the Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice John G. Roberts Jr., and has been confirmed by elaborate studies from teams of professors.

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Not content to let a lowly law student’s theory rest, Judge Roberts–at that time not yet on the Court–did his own study and confirmed the findings. More questions does not equal success. The Justices aren’t talking to the advocate–they’re talking to each other.

The two studies do illuminate something about the nature of questions that Supreme Court justices ask lawyers for each side. In form, they are efforts by the justices to elicit information, clarifications and concessions from the lawyers. In reality, though, these arguments are for the most part attempts by the justices to persuade their colleagues.

“Quite often the judges are debating among themselves and just using the lawyers as a backboard,” Chief Justice Roberts said at Columbia Law School last year.

A third study, this time by empiricists, not lawyers or judges, found that, largely, Shullman and Roberts were right. They looked at 2,000 arguments and more than 200,000 questions. The conclusions were consistent and showed some interesting findings:

  • The relative number of questions asked is indicative. If both sides receive the same number of questions, the likelihood of reversal is 64 percent.
  • “But if the side seeking reversal gets 50 more questions than its adversary, the likelihood of a victory drops to 39 percent. And if that side manages to get the maximum number of extra questions in the study, which was 94, the likelihood of winning drops to 18 percent.”

And that makes Thomas all the more interesting. Because he isn’t asking questions at all. Perhaps he knows the questions don’t matter?

As he has said else where, all the relevant arguments are in the briefings, and if he hasn’t been persuaded by them, oral arguments are not going to persuade him, either.

On the other hand, Justice Thomas prefers a more laid back approach.

“If I invite you to argue your case, I should at least listen to you,” he told a bar association in Richmond, Va., in 2000.

The current court isn’t exactly conducive to that, however, with Justices firing off questions almost faster than they can be answered.  In the 20 years that ended in 1988, Justices asked an average of 133 questions per hour long argument.

(h/t NYT

and Constitutional Daily)

Large Numbers of Law, Week of 2/21/11.