I listened pretty carefully to most of the Q&A yesterday at the Court and was surprised that Solicitor General Verrilli gave it up so lazily but way more surprised -- perhaps stunned -- at the ignorance shown by many of the justices' questions. They may know the law but they don't know people. They speak like creatures living in a separate universe. I exempt both Sotomayor and Kagan. But Kennedy and Scalia? Ye gods!
Which is why I went looking for others' take on the arguments.
Andrew Koppelman (law, Northwestern):
The long-awaited oral argument on the merits in the challenge to the Affordable Care Act makes depressing reading, because so many judges seem to be ready to buy such silly arguments – arguments whose silliness was pointed out on the spot, sometimes even conceded by the challengers, but which nonetheless seemed to sometimes move Chief Justice Roberts and Justices Kennedy, Scalia and Alito. (Justice Thomas, who characteristically didn’t say a word, is a sure vote to strike down the law.)A lot of arguments have been made against the mandate, but we can roughly group them into two broad categories, which I’ll call (1) No Limits and (2) I Am A Rock. No Limits claims that if the mandate is permitted, there will be no limitations on federal power. I Am A Rock claims that people have a constitutional right to some safe harbor where they and (more importantly) their money are immune from all federal regulation. ...[emphasis added]
Koppelman reminds me that the other day I went looking for the full text of John Donne's "No Man Is An Island." Because that bell "tolls for thee," America!
Mark Tushnet (law, Harvard) has six points to make, among them these:
3. Particularly in the first hour, a fair number of the questions indicate a basic misunderstanding about how insurance works, as a payment based on actuarial calculations of risks and realized costs over some defined population, rather than as a prepayment of actual realized costs determined on an individual basis. The “over some defined population” point is important, indeed central, but lots of the questions seemed to me not to understand it.2. The Chief Justice’s questions – for whatever weight one gives to questions – are systematically favorable to the government’s position, stating it clearly and forcefully, and asking what’s wrong with that argument.
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And then there's the wisdom of InTrade. Sarah Kiff, at Wonkblog, covers the odds.
Going into Tuesday morning’s Supreme Court arguments, there was decently widespread agreement that the health reform law’s mandated purchase of insurance would survive the Court’s questioning. One poll released Monday, of 69 former Supreme Court clerks and attorneys who had argued there, found that 65 percent expected the provision to be upheld. On InTrade, odds hovered just about 67 percent.
But when the Court let out after two hours of oral arguments on the individual mandate, observers seemed a lot less certain. Jeffrey Toobin told CNN that he thought the arguments were a “trainwreck” for the administration, predicting now that the provision would get struck down. Donald Verrilli, who represented the Obama administration, stumbled over his words in his opening statement while Paul Clement, representing the law’s opponents, delivered a strong performance. On InTrade, the odds of the mandate being overturned shot up to 55 percent.
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I wonder how long it would take for one guy on a lame mule to perambulate from the District of Columbia to the California coast, past all the terrors of the frontier, the winds on the plains, the desert's threats. Three months?
That's how long our lame mule -- the Supreme Court -- will take to get the word out to the whole nation about the ACA decision. Does it really take that long for them to get their brains in gear?
