Why Jeffrey Toobin Is Wrong About the Supreme Court and Obamacare

[swag]

http://www.theatlantic.com/politics/archive/2012/04/why-jeffrey-toobin-is-wrong-about-the-supreme-court-and-obamacare/255441/

Topher Spiro

"This was a train wreck for the Obama administration. This law looks like it's going to be struck down." And with that hyperbolic instant reaction, CNN legal analyst Jeffrey Toobin prejudiced media coverage of the Supreme Court arguments on the constitutionality of Obamacare. But reading the entire transcript carefully, I wondered if I was reading the same thing Toobin witnessed inside the court.

To be sure, the conservative justices posed a few hypotheticals, the gist of which were: What makes health care different? Why can the government make you buy health insurance, but not broccoli or cars? But that was to be expected. Judges often play devil's advocate to test the strength of competing positions. What would have been truly shocking is if the justices had not probed for a limiting principle, since it's become a standard line of questioning.

Consider the arguments before the D.C. Circuit Court of Appeals. Judge Laurence Silberman, who was appointed to the bench by President Reagan, posed a hypothetical too: Can the government make you buy a car? And the questioning that day prompted the headline "Appeals Court Raises Concern Over Health Law." But ultimately Judge Silberman, like six other federal appeals court judges, upheld the law.

By the end of the arguments before the Supreme Court, it was clear that Chief Justice Roberts and Justice Kennedy understood why health care is unique. To wit: the uninsured affect costs in a way that doesn't happen in other markets. Kennedy pointed out that the uninsured "are in the market in the sense that they are creating a risk that the market must account for."

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[elleng]

1. Missed Toobin (fortunately.)

One thing I can say for sure: Its extremely foolish to 'bet' on Supreme Court decisions based on oral argument.

[SoCalMusicLover]

2. I Base My Opinion On The Politics Of The Justices

I hope that I'm wrong, but the conservative block always votes the same way every time.

I guess Kennedy is the swing vote, but lately he seems to side with the right wing of the court, which makes me think he'll give in and vote with Roberts, Alito, Scalia, and Scalia's twin(Thomas).