Cockiness is not a winning Supreme Court strategy. Contempt for your philosophical opponents does not make you right when looking through the lens of the Constitution. We blogged as much yesterday, and given the results of today’s oral arguments, it appears we hit the nail on the head.
Grace Wyler reports for Business Insider:
“According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”
“This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.
Toobin added that the Obama administration’s lawyer, U.S. Solicitor General Donald Verrelli, was unprepared for the attacks against the individual mandate.
. . . “He was not ready for the answers for the conservative justices.”
The conservative justices may be the least of the administration’s worries at this point. It has long been thought that the Court’s “swing vote” – Justice Anthony Kennedy – who is thought to sit at the ideological middle of the Supreme Court’s nine justices may be the deciding factor in the case. Early reports from those in the room indicate that Justice Kennedy was more skeptical of the individual mandate than once thought.
“Here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way,” Justice Kennedy averred..
Kennedy also pressed Verrilli to identify some limits on the Commerce Clause should the Court uphold the individual mandate, specifically pressing the Solicitor General if they were not forcing purchase in order to stimulate demand. Verrilli was baffled.
“No. The, the – we think that in a – when – the difference between those situations and this situation is that in those situations, Your Honor, Congress, would be moving to create Commerce,” Verrilli stammered.
It got so bad that the Supreme Court’s reliably liberal justices had to give the Solicitor General a hand by making his argument for him.
“I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money,” prodded Justice Ginsburg.
. . .I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people. . .”
Solicitor General Verrilli could only manage to say, “[T]hat is definitely a different that distinguishes this market and justifies this as a regulation.”
He should have thrown in a “thank you” for helping him to save face.
Of course none of these arguments should have been new to the Obama Administration’s legal team. After years to prepare and multiple appellate court appearances already under their belt, neither the questions nor the answers to them should have come as a surprise. And yet, they seemed to be.
Even when it came to the now-familiar question of a limiting principle, made most famous by asking whether a mandate to eat broccoli would be constitutional, the Administration stumbled.
It would be easy to chalk it up to a bad day or a simple case of nerves, but this may reveal something much deeper – that the Obama team can’t devise a limiting principle that stands up to scrutiny or, as a result of their hubris, didn’t feel as though they needed one. The former would highlight the fundamental weakness of the case, the latter a weakness of character, and either could be enough to check the growth of Washington’s power in our lives.
Although much is yet to be decided, freedom loving Americans can feel heartened by today’s results.