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10:22 amWednesday's Argumentsby Louise RadnofskyAdd a Comment
Justice Breyer has been especially aggressive in challenging Mr. Clement to say what he proposes the justices actually do to resolve the fate of the law, suggesting that his options include appointing a special master or going back to the district courts. He's also listed several of the provisions of the law, prompting laughter when he referred to expanded health services for Native Americans as "the Indian thing."
"Those [other provisions] have nothing to do with the [mandate] stuff... OK?" he said. "They can stand on their own." Photo: Getty Images
10:21 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Justice Kagan has indicated that she believes the case law to date supports the idea that the court should apply a light-touch to what it does, and that if the choice is between leaving half-a-loaf and no loaf, half-a-loaf wins.
10:20 amWednesday's Argumentsby Louise RadnofskyAdd a Comment
Justice Kennedy has asked broader questions about the precise test that he thinks should be applied in this case to determine what Congress intended. He's been met with a flurry of responses from Justice Sotomayor, Justice Elena Kagan, and Justice Stephen Breyer. Photo: Getty Images
10:19 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Chief Justice Roberts and Justice Anthony Kennedy are considered to be the swing votes in the health-law case, so their questions will be especially key here.
10:13 amWednesday's Argumentsby Louise RadnofskyAdd a Comment
Chief Justice John Roberts has asked several questions of Mr. Clement that further the case for striking down the whole law, and echo other remarks from Justices Alito and Scalia.
He has suggested that the whole of the health-law should be considered to be linked to the individual mandate because its myriad of other provisions, such as black-lung payments, were actually included as sweeteners to pass the main bill. Without them, Congress "would not have been able to cobble together the votes to get it approved," he said. Photo: Getty Images
10:07 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Justice Ruth Bader Ginsburg has sought to argue that the most legally conservative position is to uphold the law. If the justices have to choose between "a wrecking operation and a salvage job, a more conservative approach would be a salvage job," she said.
10:07 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Conservative justices Antonin Scalia and Samuel Alito have seemed to endorse Mr. Clement's case. Justice Scalia has been responding frequently to Justice Sotomayor's remarks, pointing to what he calls "legislative inertia" as a reason not to leave the decision of how much of the law to keep to Congress. Justice Alito, meanwhile, has argued that if the judges are considering what Congress intended when it passed the legislation, they should probably consider that the legislation wouldn't have passed without its cornerstone provision, the individual mandate.
10:06 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Mr. Clement answered most of the questions he got in the first half-hour by saying that without the mandate, the health law would be a "hollowed-out shell."
9:55 amWednesday's Argumentsby Louise RadnofskyAdd a Comment Justice Sonia Sotomayor was first to interrupt the challengers' lawyer Paul Clement, who is arguing that the whole law should be invalidated, shortly after he began making his remarks. "Why shouldn't we let Congress" decide what to do, she asked him. "What's wrong with leaving it in the hands of people" who should be taking this decision, "not us?" she continued.
9:54 amWednesday's Argumentsby Louise RadnofskyAdd a Comment The Supreme Court's liberal justices went head to head with conservative judges on the bench Wednesday morning in an effort to protect the health law, arguing strongly in favor of keeping most of the overhaul legislation even if the individual requirement to purchase insurance or pay a fee is ruled unconstitutional.
Start from the bottom and read to top for actions of the Court today. It seems apparent to me that the liberal justices know the mandate is gone and they are arguing their best to salvage the rest. The Chief Roberts rightly pointed out the “sweeteners” put into the mandate to bring more congressional votes on board.
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Illustrating perfectly why we need to keep liberal activist judges from ever getting on the courts (at any level!). The simple answer to her plea is that (a) even the Congress is limited by the Constitution, and (b) the Constitution provides a mechanism for amendment, if that is the will of the people. You can't shortcut the process just because a simple majority or, in this case, a vocal minority wishes to act extra-Constitutionally.
Unfortunately, we're going to be living under the shadow of Obama (Sotomayor and Kagen appointments) long after he's un-elected this fall.
"Wise Latina", indeed.
Thanks for keeping us informed Katie....interesting read to see what they are arguing. Looks like the mandate issue is at the heart...without it the whole stack of cards comes tumbling down. The Insurance Companies could not survive otherwise....but perhaps that is the intent where only the stronger survive....which can be controlled by the government in order to “save” the industry?
"The morning session started at 10 a.m. ET, and the afternoon session starts at 1 p.m."
None of them are wearing sweatbands.
Act III of Shadows on the Wall. They will rub their chins and ask penetrating questions... just before pulling the rug out from beneath our feet.
Newsies are blaming the government’s attorney for not making a good enough case.
[He may need medical — they are thowing him under the bus.]
But for those interested, I've been posting all the WSJ tweets coming down from their people inside the courtroom beginning at Post 153 and following. If nothing else, it's a quick summary, plus reports from all three days of the proceedings are in there.
This is the critical decision. Notice how the liberal “Justices” are all in a flurry. If they strike down the individual mandate but leave the rest, then we are toast.
There was no severability clause in the bill. They put one in, but then they took it out. Notice that the slime justices are trying to get around this by asking what was congresses “real intent”?
That’s activist language. Not what did the Founders actually say in the Constitution, but what did they secretly MEAN, reading their minds? What did congress secretly MEAN by failing to include a severability clause.
To hell with that. No severability clause—the whole thing should go down, and let congress start over again.
A CNN/Fortune senior editor has a ‘Goebbels Moment’ about the arguments:
http://finance.fortune.cnn.com/2012/03/28/obamacare-supreme-court/?iid=H_TS_News