Health Care How Appealing Obama Supreme Court

It’s all about the Supremes….and Healthcare


On Thursday at 10 a.m. eastern time, the Supreme Court will announce its ruling on the Obama Administration’s Health Care Initiative, known for better or for worse as Obamacare.

For those of you who don’t want to wait for the news on this ginormously important decision to be masticated and pre-digested by news persons who may or may not be informed enough to do so meaningfully, how can you find out on your own?

Easy. This man will tell you.

This is Lyle Denniston, the lead reporter at the utterly wonderful ScotusBlog. Denniston is 81 years old, and has been covering the Supreme Court for fifty-four years, and he really knows his sh… er…stuff. In those 44 years, Denniston has reported on one-quarter of all of the Justices ever to sit on the court. And, no, he’s not an attorney. But he does understand the law very, very well.

He’ll be inside the court and will get the decision when it comes down, then bounce it via SKYPE out to his colleagues at SCOTUSBLOG who will then LIVE BLOG their minute by minute deconstruction.

It will be tough for anyone else to beat Denniston and SCOTUSBLOG with the news.

SCOTUSBLOG has been live-blogging Supreme Court decision for the past few years, and they’ve got this routine down. However, under normal circumstances, they are just read by lawyers and few other crazy people like me. (I use them as a source all the time, and I see that Taylor has newly and happily discovered them.)

But this time, the mainstream media has discovered and will be watching them. In fact Ezra Klein at the Washington Post even did a little profile on Denniston, which you can find here..

THURSDAY 10 AM UPDATE: The SCOTUSBLOG people’s liveblogging is, I understand, getting 1000 comments per second, as of right now, and has more than a half million readers, as I type. It is also being carried by C-SPAN

Immediately pundits everywhere will be opining about what the decision means.

Naturally, there is a lot of handicapping going on already.

Josh Gerstein at Politico has a handy list of win/lose scenarios for various players. Gerstein’s analysis is snappy enough for quick reading, but canny enough to be worth your time. Plus he goes beyond the obvious players to include which media types the various possible outcomes could affect.

Here’s a sample:

The insurance industry

Best case: The mandate is struck along with new requirements for insurers. Insurance companies could end up getting the best of both worlds — at least for a short time. Consumers will still get subsidies to help them buy insurance, which benefits the industry, and the insurers won’t have to live under the new rule that they accept all applicants, even the expensive ones.

Worst case: The mandate is struck by itself. The insurers would be in a tough spot if the mandate — which brings insurance companies loads of new customers — is rejected, but the costly requirement to insure everyone remains. Insurers and policymakers from both parties warn this scenario would create a “death spiral” in which premiums would spike as customers buy insurance only when they really need it.

Justice Antonin Scalia

Best case: The individual mandate falls.

Going into oral arguments, some liberals and administration officials thought they might be able to win Scalia’s vote to uphold the law. After all, in 2005, the justice regarded as the intellectual leader of the court’s conservative wing sided with the federal government and the court’s liberal justices in a dispute over the feds’ authority to ban at-home cultivation of marijuana — even in states that have sought to legalize medicinal use of pot.

But it didn’t take long for Scalia to dash liberals’ hopes. He mounted a withering attack on the health care law, questioning whether the feds could mandate purchase of broccoli and lamenting the length of the 2,700-page bill.

A decision to strike the mandate, even one written by Chief Justice John Roberts, would cement Scalia’s position as the star of the conservative legal firmament.

Worst case: The mandate is upheld.

No doubt Scalia will have a colorful and impassioned dissenting opinion, but on the losing side he’s far easier to dismiss as a crank.

He’s already been on a tear this week, delivering an angry dissent in the Arizona immigration case that led one commentator to say he sounded like “a right-wing talk radio host rather than a justice of the Supreme Court.”


Slate’s Dahlia Lithwick’s Wednesday column mostly has to do with the fact that she’s reached her wits end and wants everyone to stop pretending that they know what will happen, when, in fact, they don’t.

Here’s a clip:

.…Finally, if I get one more email from someone predicting the outcome of tomorrow’s health care cases based on a judicial speech, the timing of a dissent, or the telling flare of a judicial eyebrow, I am going to set my Out of Office response to the “fleeting expletives” setting. Truly, nobody knows what’s going to happen, and the group hypnosis that convinced everyone that the mandate would be struck down on Monday—and is equally adamant that it will be upheld tomorrow—is starting to make me feel like a member of a very troubled cult. My friend Professor Barry Friedman at NYU* described it to me this way today: “Everyone keeps saying, ‘The longer this goes on, the more I’m thinking X will happen.’ But that’s nuts; the decision was always going to come down on the last day of the term. What we’re really seeing is our own anxiety about the case circling around in our heads.” I agree. The only thing that has changed since March is the calendar. Walter, have you any thoughts or predictions to offer? Tea leaves to read? My Out of Office response is standing by.



Last week Bloomberg surveyed 21 Constitutional scholars about the Individual Mandate section of the Affordable Health Care Act. (Well, actually, it seems that Bloomberg tried to survey more, but 21 answered their questions.)

Anyway, out of 21, 19 said that the public option-–the part of the law that would force people to buy health care if they were uninsured—was constitutional. However only 8 of those 19 expected that clause to be upheld by the majority of the Supreme Court Justices.

Here’s a clip of the Bloomberg story by Bob Drummand.

When you take the fact of a high-profile, enormously controversial and politically salient case — to have it decided by the narrowest majority with a party-line split looks very bad, it looks like the court is simply an arm of one political party,” University of Chicago Law Professor Dennis Hutchinson said in an interview.

Nine of the law professors said if the coverage mandate is invalidated the justices are likely or very likely to throw out several related provisions, such as requiring insurance companies to offer policies without regard to pre-existing medical conditions. Five respondents said the justices will leave those provisions in place; seven called it a toss-up.

By a large margin, 15 of the 21 professors predicted the Supreme Court won’t kill the entire law even if justices throw out the insurance mandate and related provisions. Only three said the rest of the statute is likely to be voided and three called it a toss-up.

Although several of the law professors thought it was a toss up whether the court would accept or reject the Individual mandate, only one thought it genuinely likely that the Supremes would uphold the whole thing.

Here is his reasoning:

“I continue to find it extremely unlikely that Justices Roberts and Kennedy will support a 5-4 decision that has such an insubstantial basis in 75 years of Supreme Court case law,” said Yale University Professor Bruce Ackerman, the only respondent who said the court is very likely to uphold the insurance-coverage requireme


Last week I happened to go to an event that California Attorney General Kamala Harris also attended. I caught Harris as she was leaving the party, and I asked her how she thought the Supremes would rule on the Affordable Health Care Act. Harris surprised me and those listening by saying she had a feeling they would uphold it. After Bush v. Gore and Citizens United, the justices “know that people are losing faith in the court.”

And Roberts doesn’t want that as his legacy? I asked.

, “I don’t believe that he does,” she said.

Harris admitted that, like everyone else, she was reading tea leaves—although she didn’t use those words. “But I’ve got a good feeling,” Harris repeated.

Very shortly we’ll find out whose tea leaf reading was the right one.

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