The Hot Theory on How the Supreme Court Gets to a 6-3 Vote to Uphold Obamacare

Rush Limbaugh.com ^ | March 30, 2012 | Rush Limbaugh

[Kaslin]

BEGIN TRANSCRIPT

RUSH: Let's talk about the Supreme Court. I am fascinated to watch the media, folks. What is happening today at the United States Supreme Court is what has happened for 222 years. There's nothing special about today. There's nothing unique. The court is doing nothing today that it hasn't done since its inception. But if you read the media you would think that the vote the court's taking today is unprecedented. Also, various stories, media obviously begging for a leak on the vote. There hasn't ever been one that anybody could recall. Even Roe v. Wade didn't leak, and that decision wasn't announced for months after it was reached.

But the media, here's a story, this is Associated Press: "Justices Meet Friday to Vote on Health Care Case -- While the rest of us have to wait until June, the justices of the Supreme Court will know the likely outcome of the historic health care case by the time they go home this weekend." Well, of course. They're voting on it. Is it unfair that the justices know and we don't know? "While rest of us have to wait until June, the justices will know the likely outcome." Well, of course, duh. They are the likely outcome.

"After months of anticipation, thousands of pages of briefs and more than six hours of arguments, the justices will vote on the fate of President Barack Obama's health care overhaul in under an hour Friday morning. They will meet in a wood-paneled conference room on the court's main floor. No one else will be present." You know, folks, it is hilarious and it's pathetic how the media are all aflutter about how the court is gonna vote on Obamacare today and then not announce their ruling 'til the end of June. It's not fair. It just isn't right. They know and we don't. We have to wait until June.

So they're hunting around here, they're hoping and praying for leaks. If you know how to read between the lines of these liberal media news stories, as I do, you can see that they're mining for leaks here. They're asking clerks to let them know how it turns out. Here's what's going on today. This is the procedure, as it has been for 222 years. The nine justices will gather in this room and they will vote, and it's only them. There is nobody else in the room. There are no clerks. There are no secretaries. The most junior justice, who is Elena Kagan, takes the notes of the meeting. She is the note taker. She records what happens here. There's no secretaries; no executive assistants. There's no iPhone in there with Siri. There are no clerks. If somebody wants a cup of coffee, Elena Kagan goes and gets it. That's common, too. The most junior justice does the grunt work like that. It's traditional, and it's always happened.

They will vote. Opinions will be assigned. There might be a little discussion going around the room as the justices explain things that are important to them, noteworthy, but there's very little persuasion, if any, that goes on here. It remains entirely civil and collegial. Do not erupt in arguments. The arguments and the dissents and the disagreements occur in writing. The vote that is held today is not final because, after the opinions have been assigned and written, it's not likely, but it has happened -- in fact, it happened with Justice Kennedy in a fairly recent case, changed his original vote after reading opinions from the other justices. That could happen here.

So the vote today is subject to change, and the really fascinating thing about what's going on today is the vote itself and what happens as a result of it. And there is a theory that is floating around out there that I want to share with you. I'm gonna take the break here and I'm gonna share with you this theory, and as a little bit of a tease, I'll tell you this about it. The theory is how the vote gets to 6-3 for total constitutionality. That's the theory. How they get there is what's fascinating.

BREAK TRANSCRIPT

RUSH: I'm not saying this is going to happen, by the way. The fact that it's so widely being predicted now, if it becomes conventional wisdom it could very well be like most conventional wisdom, and that is wrong. There's a very, very left-wing blog called the SCOTUS blog, and the guy there is predicting 6-3 for the whole thing being found constitutional, 6-3. A lot of others have looked at his reasoning, "Yeah, you know what, I like that reasoning, it makes perfect sense to me. I think I'll sign on to that." If it happens, and if it happens the way the theory explains it, we don't have a court looking at the law anymore. We have a fully politicized third branch of government.

Now, I know that the liberal judges don't look at the law; they look at ways to rewrite it. I know that the left has politicized the courts for years. Books have been written about it. I'm not trying to sound naive here. I'm talking about the entire institution, if it goes this way. The only way you can get to 6-3 -- well, not the only way, but this theory's way, requires that the judges look at things that they consider more important than the law. Such as the reputation of the court. Such as desire for there not to be so many 5-4 decisions, particularly on matters of such great importance.

So here goes. The chief justice, John Roberts, gets to decide who should write the opinion when he is in the majority. He assigns it. This theory holds that he'll write it himself. But before we get there, let's review where we are. Anthony Kennedy made it clear for all this talk about a plane wreck and a train wreck, if you read the transcripts all the way through, and we played the sound bites of Kennedy on both sides of this, Anthony Kennedy was open, made it very clear, he was open to the idea that the mandate is constitutional. Remember his phrase, "You have a heavy burden to prove here."

If the government, in his mind, has made the case that this law is necessary and proper, he's indicated he could find the whole thing constitutional. He also appears open to the idea that this whole business that the commerce clause says you can't force people to buy something, the way that got dissected and explained in a way to make people think, well, wait a minute here, maybe we could say that it's constitutional to require everybody to buy health insurance because the fact is that the market already exists. People are already buying health insurance. It's not a new market the government's creating. If it were a new market they were creating, that would be a slam-dunk, no way is that constitutional. But the out is, the market's already there. The government's not creating anything.

So the point of these two bits of analysis is to suggest that Roberts and Kennedy could be with the four liberals in finding the whole thing constitutional. The idea that this legislation is so important, so transformative that a 5-4 decision is not desirable by the chief and by a lot of people, that it would roil the country. A 5-4 decision is too narrow if they're gonna find the bill unconstitutional. Because, you see, theoretically the Supreme Court hates -- theoretically -- hates telling Congress that what it's doing is illegal. They hate intruding on this. They are always balanced on the side that whatever happens in Congress is fine and dandy, and it has to be a real breach before they move in and take it away from 'em. And if they're gonna move in and take it away from them and declare what Congress did illegal and against the law and constitutional, they don't want to do that with a 5-4 decision.

That's what this theory holds. I'm not telling you I subscribe to this. But if that part of the theory is accurate, what's that tell us? It tells us that the court's worried about its reputation more than getting the law right. It's worried more about what people are gonna think of 'em. They're worried more about how it might roil the population, 5-4. We need 6-3 and we need 7-2 on this. So how do you get there? The theory is that Kennedy will go ahead and join the libs and make it 5-4 for total constitutionality, because he signaled that. Then Roberts, after having seen that, knows he can't stop it, so he joins the majority to make it 6-3 so that he gets to write the opinion. And in writing the opinion, Roberts will then limit the scope of the Obamacare bill to something like, yes, Congress can force us to buy health insurance, but nothing else.

Now, you might be asking yourself, can the court do that? There's nothing in this legislation about limiting it to just health insurance. The court does it all the time, folks. Try to find a limiting principle in here when there's not one in the bill. This is what frustrates me about this whole theory. There is no limiting principle in the bill. And yet this theory holds that they want a 6-3 or 7-2 decision. That Kennedy's gonna go with the libs. That Roberts will see that, and to protect the court's reputation and to write the opinion and have a limiting principle in there to limit the damage to this, the theory is that Roberts can go either way. Once he sees how it's gonna go, then he'll join the majority and then write the opinion himself to limit the damage, if you will.

Now, this theory also requires that you believe Roberts signaled during oral arguments that he could find a way to find this whole thing constitutional. That he didn't seem anywhere near as opposed to this as Scalia was, for example. So if he crosses over with Kennedy and joins the libs and it's 6-3, he writes the majority opinion, and he makes it as narrow as possible so that, yeah, they can force us to buy health insurance, but they can't make us buy anything else. That won't hold up by the way. Nobody's gonna remember a limiting principle in this. They're gonna remember, if this happens, it was 6-3, or 7-2 for total constitutionality, and that's it. But that's how this theory goes. As I tell you, this requires you believe the court cares not about the law, but rather about other things.

BREAK TRANSCRIPT

RUSH: Now, the theory that I just gave you comes from SCOTUS blog. It's run by a very left-leaning guy. A lot of people who are not liberals have run across this theory and it appeals to them. It's slowly but surely behind the scenes becoming conventional wisdom, and of course the left is glomming onto this, 'cause they love this possibility. They're fantasizing here, almost. I mean they are dreaming of a 6-3 decision where the chief is in the majority and writes the opinion. They can't have a better day than that, other than if it went 7-2. And it could go 7-2.

What this theory relies on is justices, particularly the chief, doing two things: caring more about what is thought of the court at the end of this, in terms of its reputation. The theory relies on the justices being very upset with all these recent 5-4 decisions, that that's too narrow. We have something this momentous, and it is, this will forever -- I forget which justice said it. This forever changes the relationship between citizen and government. This is it. I mean this changes the whole notion of the Constitution, that limits government. This wipes that out.

What troubles me about the theory is that has to be totally discarded. The law, the Constitution has to be totally discarded all because the court is going to be worried about a margin of defeat. Like if Kennedy goes the other way, 5-4, the same theory holds that Roberts will then join that side to make it 6-3 unconstitutional. So it still is about Kennedy here, in this theory. And that's all this is. Just a theory. But what made me want to explain it to you is that it's out there and that a lot of people on the right find it appealing. Those people, too, who find it appealing are frustrating to me because they are looking at this, like I said earlier this week, this is just another fun intellectual exercise to 'em. We're here in the classroom and we're debating political science. We are trying to be the smartest people in the room, to figure out exactly what the court's gonna do within our own political constraints.

That's what frustrates me about this, the fact that most people talking about this don't get the severity of what we face is. Because in the real world, there's no way this law is constitutional. I don't say that as a partisan. In a just and sane, objective world, this would be slam-dunk struck down nine to nothing. It should at least be 7-2 unconstitutional and throw the whole thing out. But the theory that seems to be the popular one relies on nothing having to do with the law. Nothing. It has to do with positioning, court reputation, not causing riots in the streets at the end of the day when the decision is announced.

BREAK TRANSCRIPT

RUSH: Now, don't worry too much about this theory, folks. The theory is becoming conventional wisdom and that means it's irrelevant and is wrong. It's advanced by the left. And, by the way, here's a quote from Senator Richard Blumenthal, former attorney general Connecticut, now Senator from Connecticut. The left is playing this "you will ruin your reputation" card. That's what this theory is about, the theory that justices will see it. They're trying to intimidate the court into ruling in favor of Obamacare. Blumenthal said, "The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statute of this magnitude and importance, and stretches so dramatically and drastically to do it."

So you guys on the court, you people on the court, you are going to destroy the court and your credibility and people won't obey if you do the right thing here and find this constitutional. So the effort to intimidate is under full swing.

END TRANSCRIPT

[Eldon Tyrell]

As noted previously -

Kagan is ALREADY sitting on the case. the court is in desperate need for credibility.

If they find it Constitutional - with Kagan involved - the game is over. There is no Constitution, and we live in a slowly evolving anarchy of “might makes right”.

Their only hope for credibility - of any sort - is to find it un-constitutional. Which of course, it is.

Finding it Constitutional - means we don’t have a Constitution. No need for credibility. We either have a Constituion - or we don’t. There is no choice of “maintaining credibility - and finding it Constitutional.” - there - just isn’t.

[AnotherUnixGeek]

He already explicitly said months ago that he would not ask Kagan to recuse.

I don't believe that the Chief Justice has the ability to deny any SC justice the ability to hear and rule on a case for any reason. Such power would effectively give the Chief Justice the ability to select which justices would get to decide every case.

[Labyrinthos]

Unlikely scenario. The more likely possibility is that Roberts has already promised Kennedy that he gets to write the opinion if he sides in favor of striking the individual mandate. A hint of this appears at page 67:24 - 68:4 of the transcript of the hearing during the morning session on March 28, 2012 concerning severability:

JUSTICE KENNEDY: So do you want us to write an opinion saying we have concluded that there is an insignificant risk of a substantial adverse effect on the insurance companies, that's our economic conclusion, and therefore not severable? That's what you want me to say?

Notice how he starts out talking about “us” writing an opinion, but ends with “me” writing the opinion.

My prediction — and please write this down:

Anti-Injunction Act; 5 to 4 — Obamacare not subject to Anti-Injunction act.

Individual Mandate: 5 to 4 — Unconstitutional

Severability: 6 to 3 — Individual mandate is not severable (Kagan jumps ship and joins the majority)

Medicaid: 7 to 2 — Constitutional, but moot because the entire law will be stricken due to the inability to sever the individual mandate. (Roberts, Scalia, and Kennedy will join the libs, but there will be a number of concur in part, dissent in part opinions.)

[redgolum]

They are human, and the justices go to the same parties and were made by the same system that produced most politicians. They will be very, very, wary of destroying the signature accomplishment of the first black president.

The worldview that made them will view that as a bigger crime than going against the US Constitution, or all the issues it will cause.

[Lou L]

Do we really think that Chief Justice Roberts would allow Kagan to sit in on the hearings if he didn’t know how Kennedy was going to vote?

This is an interesting answer, but it assumes that Roberts only wants to overthrow the law. If Kennedy votes to uphold, it doesn't matter whether Kagan abstains or not--I believe a 4-4 tie would uphold the law. And wouldn't that make this even more of a mess, an unpopular law being upheld by a 4-4 tie?

And, if the Court is so interested in their power and reputation, you would think they owe the current President a smackdown for his berating them in the 2011 SOTU address.

I'm reading the Toobin book on the Supremes now. In it, he claims the Justices have very little interaction with one another...at least, they aren't chummy within their offices. There aren't many casual strolls from office to office, not a lot of mundane small talk--"who do you like on American Idol? Oh, really? Which way you gonna vote on the ACA? Want to do Chili's for lunch?"

[onyx]

I said “retiring”. Kennedy said he’s retiring after the 2012 election.

[Road Warrior ‘04]

Like Rush says, it’s one or two people in the U.S. that currently have the power to make us a slave state or a free state. Sad, it’s come to this, anyway!

[Road Warrior ‘04]

Do we really think that Chief Justice Roberts would allow Kagan to sit in on the hearings if he didn’t know how Kennedy was going to vote?

A very fair point to make!

Hey, young lady! Do you ever read your emails? Luv ya!

[ml/nj]

I have to admit I’m not current with Sheriff Joe’s news?

You're kidding, right!!

He had an hour and a half press conference detailing fraud on behalf of Obozo back on March 1. (Same date we learned that Breitbart "died"* and there was a "bombscare" at Rush Limbaugh's compound in Palm Beach.) I'm not going to give you a link to an hour and a half video but I suggest you get started with this three and a half MINUTE video. If you care you will follow its links.

ML/NJ

* How's that autopsy going BTW?

[loveliberty2]

"Blumenthal said, 'The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statute of this magnitude and importance, and stretches so dramatically and drastically to do it.'"

Question for Blumenthal:

1. You say, 'The only reason people obey it is because it has that credibility. And the Court risks grave damage if it strikes down . . . .' Were you as concerned by the President's blatant and unprecedented words against the Court in a State of the Union address? Or, are your remarks just a continuation of this Administration's intended challenge to the authority of Court whenever it rules in favor of individual freedom and against intrusive and coercive power concentrated in government?

Note to Blumenthal:

Might it occur to you and your fellow so-called "progressives" that Supreme Court Justices might be more concerned about how generations of Americans yet unborn may consider their decision and individual written opinions than they are about how a few truly insignificant human beings of 2010-2012, ignorant of America's 200-year heritage of liberty and hungry for power for themselves and their cronies, felt about their decision?

Civilization's long struggle for individual liberty and against concentrated power in other arrogant and imperfect individuals, or collections of individuals, is well documented.

Only in America, in one little spot on the globe, and in one little sliver of time, did a group of individuals come together, organizing themselves around a concept of Creator-endowed life, liberty, rights and laws to protect each individual, agree to a form of self-government whose written Constitution's provisions placed "People" over "government."

Future generations will read about this little sliver of time in America's history too, and they will know whether this Court upheld the Founders' vision or reversed the course and unleashed oppressive powers from which previous generations had fled.

[onyx]

Does Toobin mention that Ginsburg and Scalia play contract bridge together? I’d call that chummy even though they’re polar opposites on the bench.

I don’t think the Court will be interested in political reputation or a black president. I think this decision will be purely Constitutional.

Maybe I’m dreaming, but I sure hope not.

This is a huge attempt at a power grab by the Marxists.

[onyx]

Thanks very much. Nope, not kidding!

[jiggyboy]

Public opinion doesn’t follow the same traditions of Christian theology or The Empire Strikes Back — he voted against Kelo, and voting against Obamacare doesn’t cancel that out when it’s time to consider his service.

[aheckle]

By making the argument that they are human you could also argue that they are paying attention to the polls that a majority of Amercians do not want this, the Congress that put this bill together was voted out, and several moderate senators had to be bribed to get this bill passed

[aheckle]

By making the argument that they are human you could also argue that they are paying attention to the polls that a majority of Amercians do not want this, the Congress that put this bill together was voted out, and several moderate senators had to be bribed to get this bill passed

[AuH2ORepublican]

“Kennedy said he’s retiring after the 2012 election.”

---

When, pray tell, did Kennedy say that? Please provide a link as to Kennedy saying that he would retire following the 2012 elections. (And don’t just post something about Kennedy saying that he wouldn’t retire before the 2012 elections.)

[jiggyboy]

That’s right, even if he would “ask” her about it, he can’t dismiss her.

[fortheDeclaration]

The fact is that the individual mandate won't be upheld, so it is only an issue of how much of the law will be struck down.

If the individual mandate is struck down, the entire law is mute.

[AFPhys]

There is no way that the Chief Justice would make any demands at all that Kagan recuse herself. She would be counted on for the integrity that it takes to make that decision herself. In the long run, if a single justice had begged out, it would not make any difference at all as to the fate of the bill since a 4-4 decision would leave it totally in place.

[redgolum]

I am making the argument they belong to the same elite as the rest of the politicians. They don't respect the “lower” classes, and don't’ care much about pols.

The worldview is more important. Look at the fiasco and sheer madness of the war on terror.