Wow. The oral argument defense of Obamacare’s constitutionality so far has not just been bad, as has been reported, but has been stunningly bad. And the incompetence displayed goes beyond that of Solicitor General Verrilli, but extends to several of the meaning-to-help-his-case comments by some of the liberal Supreme Court Justices themselves. It is a before-your-eyes meltdown of the liberal legal establishment reputation’s for intellectual rigor.
I don’t have time presently to go into the p’s and q’s of it, but Pundit and Pundette gives you a good collection of observations (link onward to David Bernstein’s thoughts), and don’t miss Ammon Simon’s great post at Bench Memos. I link to specific posts, but go to the home pages of these sites for lots more on this.
Read the quotes these bloggers have collected. There’s some truly stunning ignorance on display here if you know even a little con-law. I taught it last semester, and some of the errors and mistakes are serious enough to keep an otherwise excellent paper from getting an A, for undergraduates!
UPDATE: Pete has similar thoughts, ones a bit more focused on liberal pundit-dom, over at No Left Turns.
March 30th, 2012 | 1:19 am
It was a really hot bench. To the extent politics influences the supreme court, it is in the recordings and media attention. All the justices want to make sure the best arguments are made. It is rarely a good sign for your presentation skills when the judges jump in and offer you arguments, you almost always win the moot court if the judges have to pick up that kind of slack for the other side. In fairness to Verrilli it did seem as if every justice was focused on something slightly different, hard to win over one justice on a point that cuts against your points necessary to persuade another justice. There is no coherent way to defend a 2700 page bill. It was not the product of a single mind and it does not argue like the product of a single mind.
It is interesting that Thomas did not break his silence.
I wonder what would have happened if everyone had addopted the Thomas posture on silence. Verrilli, might have done better, or not. Hard to know what his ideal outline was. In any case it suffered because unlike opposition to the PPACA, it has no unifying political theory that is rhetoric scalable which could coherently bind it together.
I think the jokes between Justice Breyer and Scalia on severability were pretty good. The Justices pretty much know that they can’t actually act as a deliberative body on this.
Oral argument is probably a lost art. Even in terms of what the justices will decide they aren’t really giving up too much intel by offering arguments themselves. Judges themselves seem to be less swayed by oral arguments.
Tommorow they will vote tentatively, and except for maybe 3 or 4 justices who already have rock solid stances, each will be working hard with clerks to dig into the body of constitutional law and make the best case possible. Kennedy it is rumored always writes two opinions, then he writes two more opinions (each on opposite sides) His clerks are going to die between now and June.
Since most of the judges are focused upon writting opinions, and wrestling thru decisions on the basis of making the drafts, I am pretty sure the oral presentations matter a bit less than folks think they do.
I think Kennedy might come down in favor of the PPACA, if for no other reason than the fact that he dislikes facial challenges. A good majority of the judges seemed to favor questions more relevant to as applied challenges.
Seeing trully stunning ignorance is only possible if you know even a little con-law. Knowing some ventures a rock solid guarantee. But at some point con-law becomes a mystery again.
March 30th, 2012 | 2:34 am
So what? As with the “abortion of a decision” that was Roe (Bob Woodward,1979), the top elites have dictated that we shall have “The Patient Protection and Affordable Care Act”, and so we shall. If SCOTUS can’t deliver it, some other vehicle will.
March 30th, 2012 | 5:57 am
Actually, as a Christian, I have to believe we’ve just witnessed a pneumatic event. Where, as in the Old Testament, God intervened against the forces of Satan/evil, He has done so again, these past few days at the Supreme Court. Confusing the minds of the radical Leftists of the Administration and the Court.
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