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

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.

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.

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.

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.

“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”

I don’t believe they actually feel that way, or if they do only in particular cases, depending on the justice’s ideology. But what about when the law in question is wildly unpopular, completely unprecedented (on the national level), and was passed through the most open and blunt chicanery I’ve ever witnessed?

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.

That is true, but the Court has no authority to compel any other court or administrative body to apply its rulings to anything other than the parties involved with the case at hand. Its rulings are given wider respect than that because they are generally assumed to have a legitimate Constitutional basis, and because few people want to act in a way which, were it brought before the Supreme Court, would be ruled illegitimate.

In a 5-4 decision where the minority were to call out the majority decision as being illegitimate, not least of all because one of the justices rendering was doing so in clearly-illegal fashion, and where the minority's opinion had a sound rational base behind it and the majority opinion did not, I suspect a lot of people would recognize that the legitimate decision was the "minority" one. Many sports' rules have language explicitly stating that certain officials' judgments have absolute authority: if the ball rolls across the plate in front of a motionless batter but the Home Plate Umpire calls strike, it's a strike. No such language exists in the Constitution. The Supreme Court has no authority to issue rulings contrary to the Constitution, and any such rulings it may issue have no legitimacy.

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 SC's reputation will be absolutely destroyed with about 60% of this country if they say that Obamacare is constitutional.

I’ve said previously I wouldn’t be surprised if the ruling iss “The government can make you buy healthcare but don’t think for a minute we intend this to mean the government can make you buy a Chevy. We will considered all future forced purchases on an individual basis.”

What do we do with Congressmen and Senators who publicly state that they don’t care about the Constitution even though they took an oath to uphold it?

I've had a couple of ideas for a while about that.

Sever New England and downstate New York and expel them from the Union.
Introduce the Athenian ostracon, and allow citizens to expel certain obnoxious people, send them into exile.
Introduce the Roman censorate, and constitute a fourth branch of Government whose sole duty will be to expel certain officeholders and lobbyists from public life, either temporarily or for life, and insulate the censors as much as possible.

For what it's worth.

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