Premature Panic on Mandate Meets Last Day Supreme Court Twist

WASHINGTON – People are in a panic over yesterday’s argument by Solicitor General Donald B. Verrilli Jr.

Adam Serwer over at Mother Jones stuck a fork in him and judges it’s over.

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.

That’s some doomsday dangle. I just don’t happen to buy it and I’ve been against the individual mandate as constructed through private insurance companies and back room Big Pharma deals, as ACA has been created through Pres. Obama’s choice.

Erik Erickson and I got in a back and forth on Twitter over the notion that public opinion matters at all. It’s absolutely irrelevant. Chief Justice Roberts is far more likely to be focused on not reducing the court to a Bush v. Gore disgrace, as what partisans believe the law means through the gaze of ideological ignorance.

Lyle Denniston today proves the point:

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.

Was yesterday a bad day for the Administration? Listen or read the transcript and it’s clear Mr. Verrilli received a grilling. But that hardly means it’s over. No doubt he’ll double back today to make points he missed, but even then it’s not indicative of what the ruling will be.

We just don’t know, so as I wrote yesterday, let’s remember that Chief Justice Roberts has a lot riding on this one, too.

From Politico today, who agrees:

… Many of the highest-profile cases in the Roberts Court — from the controversial Citizens United ruling to the 2006 decision striking down school desegregation plans in Louisville and Seattle — were bitter 5-4 affairs, with Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito and swing voter Anthony Kennedy in the majority.

In the 2010 term alone, 16 cases out of about 80 were decided by 5-4 majorities, 20 percent of the total docket, according to analysis by SCOTUSblog. The split verdicts included a Roberts-backed decision blocking Walmart employees from refiling gender discrimination suits that had previously been dismissed on a technicality.

The divisions haven’t been universal: There has been bipartisan agreement on a handful of key cases, including some involving the rights of accused criminals, with Scalia in particular siding with court liberals such as Ruth Bader Ginsburg.

Roberts defenders say the court’s schisms are overplayed.

Jonathan Cohn:

That was Verrilli’s point at the end, during final summation: That, by striking down the mandate, the judiciary would be committing an aggressive act of judicial review, stepping into matters traditionally reserved for the democratically elected Congress and president. I happen to think he’s right about that. Whether five justices of the court agree, alas, is pretty unclear at this point.

Legal experts are focused on Justice Kennedy.

As for me, I’m a lot more curious about Chief Justice Roberts, a wunderkind who I believe doesn’t want a history-rocking Bush v. Gore nightmare to match the other split decisions, who knows people find the Supreme Court more political than judicially ethical, and who knows whatever decision comes down will etch the character of himself and the court he leads in history.

I’m just not convinced by listening to what was said or by reading the reams of words written that Jeffrey Toobin’s pronouncement of what yesterday wrought, “a train wreck for the Obama administration,” will end in overturning the mandate, though it could.

Absolutely nobody knows, not even the justices at the Supreme Court at this point.

Our media world doesn’t do well with uncertainty, but that’s what we’ve got until late June.

One thing is certain, however. The premature panic and squealing headlines about “Obamacare” going down has nothing to do with reality inside the Supreme Court, nor does public opinion, which won’t sway Roberts, Kennedy or Scalia in the end.

“We feel very good about where we stand with the Supreme Court. Look at what happened in the lower courts when they heard this case: Judges Sutton and Silberman asked brutally tough questions during oral arguments and then they ruled in our favor. The armchair Court-watchers love to make predictions, but there is a long list of cases where the pundits have been wrong. For example, after the oral arguments in a voting rights case in 2009, everyone predicted the government would lose. We ended up winning 8-1. Yesterday was what we expected – tough questions for attorneys on both sides of the issue. Ultimately, we are confident we will win.” – Mike Allen’s Playbook


Taylor Marsh is the author of The Hillary Effect, which is now available in print on Amazon. Marsh is a veteran political analyst and commentator. She has been profiled in the Washington Post, The New Republic, and has been seen on C-SPAN’s Washington Journal, CNN, MSNBC, Al Jazeera English and Al Jazeera Arabic, as well as on radio across the dial and on satellite, including the BBC. Marsh lives in the Washington, D.C. area. This column is cross posted from her new media blog.