Now that three days and six sessions of Supreme Court oral argument on ObamaCare have finished, what conclusions can we reach about how the decision will go? Earlier today I spoke with Professor Randy Barnett of Georgetown University Law Center, who represented the National Federation of Independent Businesses (NFIB) in the court challenge to the PPACA, and who attended all six sessions as an observer on their behalf. We spoke about the dangers of making assumptions from oral arguments, the performance of Solicitor General Donald Verilli, and the impact of government regulation on smaller businesses versus larger competitors:
Professor Barnett spoke about the nature of the legal analysis in the media, before and after the sessions this week. The shock, shock seen in the media and on the Left in response to the difficult nature of the questioning comes from a level of cocooning among liberal analysts, Barnett suggests more than once in the interview. That has led them to overreact to the tough questioning offered by the justices, especially the conservative justices, with a sky-is-falling hysteria. Barnett says he feels “very good” after the six sessions, and that as an attorney it’s better to feel good than bad walking out the door, but “I don’t feel confident that I know for sure what’s going to happen” with the decision.
Toward the end, I return to the Left’s reaction and the impulse to blame Verilli for how the administration’s argument seems to have failed. “It goes back to the echo chamber,” Barnett replies. “I think it’s really unfair,” he says of the torrent of criticism that rained down on Verilli. “I’m not saying he had a world class day — I think Paul [Clement] and Mike [Carvin] did much better.” However, Verilli made all of the arguments that the administration had prepared for the case, and it’s not Verilli’s fault that the justices treated them with considerable skepticism; it’s the fault of the law itself. “They just didn’t sell,” Barnett explains. “They sold to some of the justices you’d expect them to, they didn’t sell to others.” Barnett was surprised that Verilli didn’t seem prepared for the conservative rebuttals, but “he’s in good company,” Barnett says, “if you read some of the law professors that are writing in places like Salon today. They were unprepared for it, even though they should know better.”
Be sure to listen to all of it, including Barnett’s dismissal of the relevance of Raich and Justice Scalia’s opinion on that case. Barnett argued the losing side in Raich and says it’s another instance of the echo chamber feeding poor analysis. At the end, though, he warns us not to jump to conclusions on how the court will rule.