Supreme Court ObamaCare Wrap-up!

It seems the individual mandate in ObamaCare is doomed. The question now is whether or not all of ObamaCare will be struck down. I originally doubted that it would be, but now I’m thinking it might be. One thing is for sure though, losing will not help the Democrats as many of them are trying to suggest.

● Thought One: Down she goes! The Supreme Court will strike down the individual mandate. Kennedy was considered the weak link for the conservative side but even he observed that ObamaCare “changes the relationship of the Federal government to the individual in a very fundamental way.” That’s lawyer speak for “unprecedented power grab.” This court will not sanction an unprecedented power grab. The mandate is toast.

● Thought Two: Incompetence. The MSM’s legal analysts should be fired for incompetence. When this lawsuit was first filed, they claimed it was “frivolous.” In legal parlance that means the arguments are so ludicrously wrong that no rational attorney could possibly make those arguments in good faith. Even as late as two days ago, these same “experts” predicted ObamaCare would win on a 7-2 vote. Now they’re despondent that ObamaCare will be beaten. To give you a sense of how wrong this is, it’s like an “expert” in aviation claiming that airplanes are too heavy to fly. . . after having flown to the interview on a Boeing. Everyone who claimed this was frivolous should be fired for incompetence.

● Thought Three: Incompetence (redux). Everyone now wants to blame the solicitor general for blowing this case. That’s wrong, and the “experts” know that. The Supreme Court does not base decisions of national significance on which side brought the better lawyer. All Verrilli’s incompetence means is that the court will do its own research into these issues. And don’t forget, “it’s own” in this case also means hundreds of legal briefs filed by friends of both sides (amicus curiae briefs). This case never hinged on the performance of either attorney. So don’t let liberals get away with pretending that the law should have been found valid if only Donald Verrilli weren’t such a moron. That is false and it’s meant to distract from the fact this law was an abuse of power.

● Thought Four: Severability. The hardest part of guessing Supreme Court decisions is guessing how far they will go. Right now, we have no way to know if the Supreme Court will strike down the entire law or just the individual mandate. They essentially have three choices: (1) strike the whole thing, (2) strike the mandate but leave the rest, or (3) strike the mandate and send the case back to the lower court to gather more evidence on what other parts also should be struck. Logic tells me, they will pick number three, but this court has proven to be bold.

Politically and legally speaking, it makes sense for the Supremes to strike the mandate and send the rest back to the lower court to gather evidence on which parts of the law rely on the mandate. Why? Because the court doesn’t like to decide things it doesn’t need to, and with the Republicans likely to control the House, Senate and Presidency after the election, the Supremes have the luxury of waiting to see how things go, i.e. Congress may do their dirty work. BUT. . . should Romney NOT win, then the 5-4 Court could end up a 4-5 Court. That fear may give this court an incentive to firmly decide as many things as possible right now -- hence, they are unexpectedly taking an affirmative action case next year.

Right now, the comments of the justices indicate they are leaning toward striking the entire thing. Scalia took the lead here and said that when you “take the heart out of the statute, the statute is gone.” His reasoning is simple: it distorts the congressional process for the court to pick and choose what survives. He also said it would be unrealistic to comb through the 2,700-page law to decide which parts were independent of the individual mandate. Liberal Justice Breyer actually echoed this when he asked the government, “What do you suggest we do? I mean, should we appoint a special master [to go through the law]?” He then placed the blame on the government for not specifically pointing out each provision which should stand. That’s usually a sign of a justice washing their hands of the case. I don’t believe Breyer will vote to strike the entire law, but this tells me he thinks the conservatives will and he is at peace with it.

Kennedy, who is viewed as the swing vote, also appears inclined to throw out the entire law. When Ginsburg said that the court should perform a “salvage job” rather than “a wrecking operation,” Kennedy retorted that doing surgery on the law would be “a more extreme exercise of judicial power.” And he said that “by reason of the court, we would have a new regime that Congress did not provide for, did not consider.” In other words, this would be court-created legislation and that is unacceptable.

The justice who concerns me a bit is Roberts. When it was argued that leaving the rest of the law in place would leave “a hollowed-out shell,” Roberts responded by saying, “but Congress would have passed part of that hollowed-out shell.” That could indicate a desire to leave the repeal up to Congress or at least get more information about Congress’s intent (i.e. send it back to the lower court for more evidence). That was the thrust of Ginsburg’s argument, that Congress must decide this, so they should leave the rest in place and let Congress fix it. But the thing about Ginsburg’s argument is that you can flip it on its head and make an equally valid argument. In other words, you can just as validly say that if Congress must make the decision, then the court should strike the law to give Congress a clean slate. That makes her argument worthless and if that’s all she’s got, then her side is out of ammo.

So while I really can’t tell you what will happen, it looks like it’s 4-4 with Roberts at bat, and I suspect he will strike the entire law because I’m not hearing a good reason not to.

As an aside, let me clarify the severability clause issue. People are claiming the absence of the severability clause means the whole law should be automatically struck down. That’s not accurate. That was the law 200 years ago -- if any portion of the law is bad, the whole thing gets struck down. That’s why people invented the severability clause, because it told courts that the legislature’s intent was to leave the rest of the law in place. Over time, the law morphed to the point that courts no longer automatically strike down whole laws. And the severability clause now is interpreted like this: if the clause is present, then the court must automatically uphold the rest of the law. But if the clause is absent, then the court MAY strike the entire law, IF the court finds that the unconstitutional piece is so vital to the intent of the legislation that the rest of the law could not continue without it -- there is no automatic striking. And we know the Supreme Court has accepted this interpretation of this missing severability clause here, because the arguments outlined above are the court working its way through the legal test of how integral this mandate is to the rest.

● Thought Five: Can’t win by losing. The Democrats are trying to put a brave face on this. They claim that losing would wipe the slate clean for the Democrats and would remove the toxic stain of ObamaCare which cost them the 2010 election. Wrong. Their ObamaCare abuse was so bad it spawned a new political party -- the Tea Party, and it led to an historic thrashing at the polls. Having the Supreme Court declare ObamaCare unconstitutional does NOT wipe away that stain anymore than being convicted of murder makes people forgive you for killing your wife. To the contrary, this will confirm to the public that the Democrats massively abused their power.

James Carville also claims a loss will help because once ObamaCare goes down, “health care costs are gonna escalate unbelievably.” Hardly. ObamaCare does nothing to restrain costs, so why would its death cause costs to rise? To the contrary, with the elimination of the taxes, requirements and restrictions imposed by ObamaCare, one would expect costs to go back down -- or more likely stay flat. Moreover, health rates are generally fixed for the year at the end of the year and won’t go up until after the election, so even if Carville is right, it won’t happen before the election. Nice try, idiot.

● Thought Six: Who are the ideologues? Finally, it’s fascinating that the left can simultaneously call the conservative justices “ideologues” as they admit that they don’t know which way three of the five justices will vote. At the same time, they ignore the fact the liberals made up their mind before they arrived and all spouted lockstep opinions. Who are the real ideologues?

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Through The Legal Looking Glass--The Nine Gray Eminences

Associate Justice Anthony McLeod Kennedy was born on July 23, 1936. I chose him very scientifically for my next Supreme Court biography of current Justices because he and I share a birthday. Although he was born eight years before me, I can still enjoy knowing that at least one Supreme Court Justice and I have ice cream and cake on the same day of the year.

Unlike me, though, Justice Kennedy is a native Californian. He is the son of a prominent Republican politically active family, and his father was a respected Sacramento attorney. As a young man, he was surrounded by famous legal personages, including the former California Attorney General and by-then California Governor Earl Warren. He served as a state senate page on three separate occasions as a teenager. After graduating from Sacramento C. K. McClatchy High School in 1954 (the year that Warren's Court decided Brown v Board of Education of Topeka, Kansas), he went on to earn his bachelor's degree in political science from Stanford University in 1958. At the time, Stanford was still a relatively conservative school for the rich and politically-prominent. He completed his senior year at the London School of Economics, which probably had a more direct effect on his legal philosophy than his three-year stay on The Farm (as Stanford is affectionately known by its alumni). He then entered Harvard Law, graduating with an LL.B in 1961 (law school graduates still received only a bachelor's degree in those days, but that's a story for another column).

Kennedy practiced law in San Francisco from 1961 through 1963, at which time he returned to Sacramento to take over his father's practice after his father's death. In 1964, College of the Pacific was accredited as a university, and opened a law school. In 1965 he joined the faculty of the University of the Pacific (located in nearby Stockton) as a professor of Constitutional law at the school's McGeorge Law School campus in Sacramento, and continues to teach students to this day. However, he does so at the University's European summer sessions in Salzburg, Austria. Some analysts of Kennedy's opinions believe that these sessions may play a major part in Kennedy's frequent invocation of foreign law in American decisions.

Kennedy never served as a California judge, but he was very active on the State's Judicial Commissions for many years, as well as several federal Judicial Commissions. He was appointed as an Associate Justice of the Ninth Circuit Court of Appeals by President Gerald Ford in 1975 upon the recommendation of California Governor Ronald Reagan.

Governor Reagan had a high opinion of Kennedy, although he had some reservations about Kennedy's eagerness to take appellate cases that had previously been considered political matters not belonging in a judicial forum. Kennedy had also shown a predisposition to agree with the Warren Court's discovery of umbras, penumbras and emanations in the United States Constitution which former Courts had never noticed before. Kennedy had taken a strong position in favor of the holding in Griswold v. Connecticut, the Warren Court case which discovered the previously unknown Constitutional "right of privacy" so ignobly advanced in the later case of Roe v. Wade. Kennedy took a great deal of heat from conservatives and abortion opponents for supporting the Roe decision, but he did so because he believed in consistency of opinion rather than any empathy for abortion.

The worst that can be said about Kennedy from a conservative's point of view is that he has an overly-developed sense of "judicial supremacy" in disputes with the other two branches of government which has led him into judicial opinions he might not otherwise have held had he developed a stronger sense of judicial restraint. But I will say that from my own very conservative point of view, Kennedy has never been a true "judicial activist." He has never shown signs of openly favoring legislation from the bench. Although he favors the "wisdom of the Court" to that of the political branches, he has never relished direct confrontation, and prefers to find a middle ground. As a result, he was often the swing vote on the Ninth Circuit Court and later, on the Supreme Court.

In 1988, after two stinging Supreme Court judicial nominee rejections in the Senate, now President Reagan nominated Kennedy. Reagan saw some "imperial" tendencies in Kennedy, but also shared many of Kennedy's more libertarian political views. Robert Bork was extremely vocal in his views despising judicial activism and willingness to prefer two hundred years of precedent to ten or fifteen years of precedent. That was simply too much, so Ted Kennedy launched a vicious campaign against him, which was untrue and unrelated to the qualifications for judicial office. The Kennedy campaign was so nasty that the expression "to Bork" came into the vernacular to describe personal character assassination in place of judicial inquiry.

Although he was not as vocal as Bork about his conservative judicial views, second nominee Douglas Ginsburg got Borked anyway. And then, in a twist of fate that Bill Clinton and Barack Obama have probably chuckled over many times, it was discovered that Ginsburg had smoked marijuana in his earlier years. That brought out the faux indignation of the leftists, but also lost him his support among conservatives in the Republican Party. For his third try, President Reagan decided that Kennedy's squeaky-clean life combined with his relatively moderate social views would produce a nominee that the Democrats simply couldn't attack, particularly after two all-out assaults in a row.

As hoped, Kennedy was largely moderate/conservative in his opinions, and has remained so throughout his tenure. On the other hand, as a compromiser and swing voter, he has never truly developed a strong judicial persona of his own, leaving him prone to joining occasionally in very strong opinions which don't really fit into his own judicial thinking. He has joined in every opinion which reasserts freedom of religion in the public forum so long as the religion expressed was not a clear extension of the arm of the state. He is regularly on the majority side in abortion cases which allow the states to regulate abortion practices, and openly and firmly opposes "partial birth abortion." But he has been led down the primrose path on the issue by Justices with stronger doctrinaire opinions and strong judicial personas.

He expressed a worrisome re-reading of the Constitution in many of the Warren Court decisions, and spoke highly of the Miranda decision. For this reason, President Reagan was concerned about Kennedy advocating consistent new-found rights for criminals. Instead, Kennedy has taken consistently strong law and order stands, and has fought the Court's tendency to keep expanding Fourth Amendment search and seizure hyper-sensitivity. He finds affirmative action to be largely bogus, and has expressed his view that it perpetuates racial stereotypes. And he is willing to apply the Miller-Roth test to pornography, most often coming down on the side of prosecutors. He took considerable flak for voting to invalidate Congressional legislation attempting to forbid "virtual" child pornography. But it was strictly on First Amendment free speech grounds, which he strongly advocates, and not out of any love for protection of child pornographers. And he had good company--conservative Justice Scalia wrote the majority opinion striking down the law on the basis of free speech since no real children were used in the pornography.

As somewhat of a libertarian, Kennedy has frequently disappointed conservative opponents of gay rights. He has based his opinions on his previously held beliefs about the right of privacy, but more importantly on social changes which leave adults to choose what they do in private so long as it is consensual and nobody is physically harmed. On the other hand, he has also been consistent in his oppositon to rules which support such "gay rights" as anti-discrimination and "hate" crimes laws. Most notably, he voted with the majority to uphold the right of the Boy Scouts of America as a private organization to ban homosexuals from becoming scout leaders (Boy Scouts of America v. Dale, 2000). Yet oddly, with his libertarian tendencies, Kennedy also joined the majority in upholding Congress's right to enact nationwide legislation prohibiting the use of medical marijuana. And it was a double-oddity, since he generally supports the rights of states to make health decisions independent of the federal government.

Kennedy has tended to show judicial activist leanings in cases involving the death penalty, occasionally citing, to conservative scholars' dismay, foreign rulings and lofty philosophical arguments about the sanctity of life. He also opposes the death penalty for all but clear cases of intentional murder with special circumstances. Thus, he invited even more conservative anger when he wrote the majority opinion in the 2008 case of Kennedy v. Lousiana, striking Louisiana's death penalty for child rapists since it punishes a non-capital crime with the death penalty when the death of the child was "not intended." Likewise, he voted to strike Virginia's law (and by extension all state laws) which provided the death penalty for the mentally deficient and minors at the time of the commission of the crime. Yet in Kansas v. Marsh he refused to consider an outright ban on the death penalty.

Again, as a study in contrasts, he wrote the majority opinion in Boumediene v. Bush (2008) finding habeas corpus rights for wartime detainees which had previously been denied throughout all of Supreme Court history. Yet in District of Columbia v. Heller (also 2008) he voted with the majority which for the first time clearly declared the Second Amendment right "to keep and bear arms" to be an individual right rather than a right granted only to militias.

For as long as he chooses to remain on the Court, and health permitting, Kennedy will most likely continue to be a swing vote. There are those among the conservative legal scholars who believe that with the retirement of David Souter and his replacement with a highly-political but second-rate intellect, the arguments which Souter strongly advanced to obtain a "plurality" decision upholding Roe in Planned Parenthood v. Casey (1992) will fade (see my Nine Gray Eminences discussion of August 4: David Souter). So there is the possibility Kennedy's vote may swing more consistently toward the arguments of the more senior and conservative Justices such as Scalia and Thomas, and be persuaded by the newer but highly articulate and learned Chief Justice Roberts and Justice Alito. If her track record holds up, it is unlikely that Sotomayor could convince Kennedy of much of anything, and she's more likely to anger him to the point that he is willing to make the move he nearly made in the Casey case and strike Roe v. Wade.
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