I have played much of the audio from the three days of oral argument just completed on my radio show. (Well, not all of the Anti-Injunction argument. I could get fined by the FCC if I did that.) Here are my impressions.
First, the general audience is very hungry for the actual back-and-forth on the big issues here. The strong response in emails and via Twitter to my playing of the extended excerpts of the Justices and the lawyers confirms that, with just a bit of help along the way to set the stage, explain the players and provide some background on various cases and doctrines, there is an enormous audience for high level broadcasting content even about the most complicated of issues. While I agree with the Court’s continued refusal to allow television cameras into the proceedings, more rapid releases of argument tapes would be a great thing. As would more serious conversation on the airwaves about the substance of the arguments.
(An aside: The audience is generally astonished that the Justices often ask questions that they themselves then do not allow to be answered. I think lawyers are so used to this that they don’t even notice how abruptly developing arguments are cut off.)
At the conclusion of the arguments being played over nine hours of radio, I declared that this must be how Vin Scully would feel if the seventh game of the World Series was called because of time and put over to the next day. It was such enormous fun I am very glad to have had the opportunity to broadcast it in near real time, commenting along the way, and to consider the arguments made for many days before having to assess the result. But it would be great to get a result sooner than the end of June or early July.
The Justices did the Rule of Law a great deal of good today. The three days were an advertisement for the extraordinary capacity of our Constitution, but also underscored the seriousness of these issues and how a Republic deals with them. This stands out: There are 2700 pages of dense law that even the Justices don’t want to read or make their clerks read, but 2700 pages are there that propose to define and regulate the lives of every American and to penalize those who do not comply.
If the Justices don’t want to read the damn thing, why should the people be obliged to? How any of them could consider striking down the mandate and leaving large portion of the half-burned down house to smolder on suffocating those near by I cannot imagine. Is it activism to strike it all down, or restraint? That was the most unexpected direction the long and winding argument took.
One of my correspondents who is used to Erwin Chemerinsky’s weekly appearances on my show opined that he was glad that Erwin wasn’t representing the government as he would have done a much better job of keeping the law safe. While Erwin is an enormously skilled advocate, I am not sure he would have made any difference at all, or if the SG and DSG were really that caught out. They didn’t measure up to Clement’s performance, but who could have? Clement has the Constitution on his side. He was arguing for limited government, which means his argument conformed to the essence of the Constitution. He had the wind at his back. General Verrilli and Deputy SG Kneedler were sprinting into a gale.
My “color commentators” –Erwin, John Eastman, AG Cuccinelli– all were fascinating to listen to, and Cucciinelli sounded very confident that Justice Kennedy’s long and genuine appreciation for structural federalism will win him to the side of the states. John and Erwin were less confident in their assessments, and we all focused on Justice Kennedy’s emphasis on the unique proximity of the young person to the rates charged or not charged by health insurers. If that is the argument for bending the Commerce Clause, then there is no limit in Lopez worth defending, and just a national government remains.
As for severability? Well, this case certainly gives the Court a chance to articulate a rule worth learning.
The most subtle of the arguments? Paul Clement’s referencing the aftermath of the Buckley v. Valeo decision. It made his point about the perils of the Court obliging the Congress to make laws on the half burnt ruins of a complicated scheme.
But it also reminded us all that Justice Kennedy went where the law led him in Citizens United, a position he had held for a long time prior to the majority arriving to enforce it. Justice Kennedy isn’t afraid to stick with a deeply held conviction, and Clement was reminding us all of that at the time of his summing up.
My conclusion: The Court really cannot uphold the individual mandate and pretend there is any meaningful limit on the federal power.
And we cannot expect the law to make a lick of sense without the mandate. So it must all come tumbling down, and the reckless jam down of a far-left Congress that has already been repudiated will vanish like the bad dream it is.