It’s Up to the Supreme Court to Live Up to the Historic Expectations Driving the Discussion

Chief Justice Roberts blew it.

Justice Roberts did a disservice by not allowing the oral arguments to be televised. It’s the 21st century and the challenges to the Affordability Care Act should be seen, as well as heard. Widely disseminating the video over multiple social media platforms would have informed far more people, because we are a visual society.

The audio will be available at 1 p.m. Eastern, so the countdown begins.

We won’t know until the end of June, but this week’s oral arguments set the backdrop and anticipation for whether the Roberts Court can live up to the historic expectations the Affordability Care Act has presented in challenges.

The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not. – Linda Greenhouse

The majority of views say it’s Justice Kennedy who could be the determining voice. Though I’m wondering if today’s argument on the Anti-Injunction Act could throw the whole mandate issue forward to 2015 (see below). However, I’ll be listening closely to Justice Scalia as well. From a senior editor at Reason.com:

[...] in 2005, when the Supreme Court last heard a major Commerce Clause challenge to a federal regulation, Scalia sided with the liberal majority and wrote a sweeping opinion in favor of federal power. In that case, Gonzales v. Raich, the Court held that the cultivation and consumption of medical marijuana entirely within the confines of the state of California still qualified as “commerce…among the several states” because this intrastate use of medical pot “substantially affects” the interstate black market in the drug.

[...] All of these arguments by Scalia appear in the legal brief the Obama administration recently submitted to the Supreme Court in defense of the Patient Protection and Affordable Care Act. In fact, Scalia’s reasoning is cited extensively in order to bolster the government’s claim that the individual mandate is a perfectly legitimate exercise of congressional power. But will the government’s play for Scalia’s vote pay off?

The Rehnquist Court proved severely wanting in 2000, when the Supreme Court entered the fray in Bush v. Gore where they had no business, changing history through political fiat. It further ruined Chief Justice Rehnquist’s reputation, which had its crescendo when he packed the OIC against Clinton.

However, Bush v. Gore only got 90 minutes, whereas the Affordability Care Act is getting 6 hours.

The issue of recusal of Scalia, is one thing, but Thomas, as well as Kagan, have both drawn more serious arguments, which The Atlantic discusses, though it’s the issue of the Commerce Clause I find most fascinating.

It is overwhelmingly likely that all nine justices will participate in the ruling. However, calls for Justices Scalia, Thomas, and Kagan to recuse themselves from the case continue — carrying varying degrees of weight. The grounds for criticizing Scalia are scant while ethical concerns directed at Justices Thomas and Kagan are more serious.

On the same day the Court agreed to hear the health care appeal, Justices Scalia and Thomas attended a Federalist Society dinner partially sponsored by Bancroft PLLC, the firm that will argue against Obamacare this month. More substantively, Thomas has failed to disclose wife Virginia Lamp Thomas’s income for 13 years as she worked for conservative organizations — including approximately $700,000 from the Heritage Foundation. Mrs. Thomas also founded a Tea Party-linked organization, publicly opposed the passage of the health care bill, appears on Fox News, and contributes to Tucker Carlson’s The Daily Caller.

Critics of Justice Kagan are demanding her recusal on the theory that she may have assisted in preparing the defense of Obamacare while serving as Solicitor General. Earlier this month, the Supreme Court denied conservative organization Freedom Watch’s request for time to argue for Kagan’s recusal or disqualification.

Yet the controversy surrounding Justice Kagan’s participation — and that of Justices Scalia and Thomas — will likely drag on, fueling speculation about how the absence of any one of the three justices would affect the health care ruling.

If you want to know the historic proportions of what’s happening at the Supreme Court in the three days of this momentous week, read Lyle Denniston of SCOTUS Blog.

Monday’s argument will focus on an 1867 law, Tuesday’s will talk about precedents going back at least to 1942 and maybe all the way back to 1819, and Wednesday’s will have echoes of states’ rights doctrine all the way from the Philadelphia Convention and its Grand Compromise in 1787.

[...]  Without exaggeration, the final ruling has the potential to be the most important declaration on how the Constitution divides up power between national and state governments since the New Deal days some three quarters of a century ago.  Without exaggeration, it could be the most important pronouncement on the federal “safety net” since the Social Security Act was upheld by the Court in 1937.  Without exaggeration, a decision to strike down all or part of the new health law could be the most severe rebuff of Congress’s power over the national economy since the Sick Chicken Case in 1935.  And, without exaggeration, a nullification of the Act in whole or in part could be the most devastating blow to presidential power and prestige since the Steel Seizure Case in 1952.

Ezra Klein’s wonk-up of the week’s oral arguments, with the Supreme Court making each day available at 1:00 p.m. Eastern. From Klein…

Monday’s argument:

Anti-Injunction Act

What it is: The Court opens its oral arguments with a debate over whether it can even issue a ruling on the Affordable Care Act since its penalties for not carrying insurance have not come into effect yet. Under a law passed in 1867, the Anti-Injunction Act, a tax cannot be challenged until someone has actually had to pay it. Health reform’s penalties don’t start until 2015. [...]

Tuesday’s argument:

The individual mandate

What it is: The most-contested part of the health reform law, the Affordable Care Act’s individual mandate requires nearly all Americans to carry health insurance. The legal question centers on whether such a regulation is permissible under the Commerce Clause, which allows the federal government to regulate interstate activity.

Wednesday’s argument:

Severability

What it is: The question of whether the health reform law can stand without the individual mandate — in legal parlance, whether the individual mandate is “severable” — is a pretty crucial one. The Supreme Court will hear arguments on if it could strike down that part of the law, while letting the rest of it stand. [...]

Medicaid Expansion

What it is: The health reform law expands Medicaid to cover everyone under 133 percent of the federal poverty line (about $14,000 for an individual) in 2014. Medicaid is run as a state-federal partnership and, right now, states are only required to cover specific demographics, groups like low-income, pregnant women and the blind or disabled. [...]

The legal eagles are expecting a lot out of the Roberts Court, it rises in every piece on the subject today.

Whether the Supreme Court can deliver is another subject entirely.

The other issue is that the American public no longer thinks of anything in any court as being outside politics. Bush v. Gore cemented that fact in 2000, while also ruining Sandra Day O’Connor’s legacy, though for conservatives it all began with Griswold, though the right prefers to cite Roe v. Wade.

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