Ginsburg: Expect “sharp disagreement” in SCOTUS rulings

posted at 5:01 pm on June 16, 2012 by Jazz Shaw

Sometimes, if you have nothing to say, it’s probably best to say nothing at all. This is an old saw which was apparently lost on Supreme Court Justice Ruth Bader Ginsburg this week, when she decided to take time out of her busy schedule and talk about the court’s upcoming decisions – including the one on the Obamacare mandate – by not really saying anything.

With a wry smile, Justice Ruth Bader Ginsburg laid waste Friday to all those rumors about the fate of the Affordable Care Act in the Supreme Court.

“Those who know don’t talk. And those who talk don’t know,” she quipped Friday night at a conference hosted by the American Constitution Society at the Capital Hilton.

Ginsburg said she was responding to a “steady stream of rumors and fifth-hand accounts” about the court’s deliberations on the law.

Careful not to tip her hand on the court’s ruling — expected in the next two weeks — Ginsburg described the oral arguments in the case as unprecedented for the number of “press conferences, prayer circles, protests and counterprotests” that occurred on the courthouse steps.

This does confirm one thing, however, which some of us have debated from time to time. The Justices absolutely do keep track of their own press coverage and are aware of the ebb and flow in the tide of public opinion. Lady Justice may be blind, but she definitely has access to cable TV.

A second quote from the event let another hint slip through the wall of silence.

The 21 remaining decisions, she said, were “many of the most controversial cases” that the court reviewed this term.

“It is likely that the sharp disagreement rate will go up next week and the week after,” she said.

That one shouldn’t be too hard to translate. Yet again, rather than finding some clear, general consensus on what the Constitution of the United States actually says and how it applies to the cases in question, we can expect yet another series of inflammatory rulings on high profile cases where the court splits 5-4 along partisan lines. (A concept which you might think most people would abhor in a body which is ostensibly non-partisan in nature.) Public faith in the court has been falling and may soon bottom out in the realm of the favorability of Congress.

So when Anthony Kennedy… I’m sorry, I mean the court… finishes ruling on all of these cases, what will the President and Democrats in general do if a significant portions of the rulings go against them? They have no idea.

Congressional Democrats who wrote Barack Obama’s health care plan into law say they’re getting virtually no guidance from the White House on how to deal with the fallout if the Supreme Court overturns any part of the law.

There have been no meetings, no phone calls and no paper exchanged with the administration, according to Democratic lawmakers and staff. The top aides to Senate Majority Leader Harry Reid and House Minority Leader Nancy Pelosi, David Krone and John Lawrence, did meet with the White House’s chief congressional lobbyist, Rob Nabors, last week to discuss a variety of issues.

But Nabors didn’t provide any information on how the president plans to approach the court’s ruling, according to sources familiar with the meeting.

This is a bit of an odd duck to begin with, as political news coverage goes. What the White House or congressional Democrats plan to “do” if Obamacare is struck down is pretty much irrelevant, beyond what sort of excuses to make, who to blame and how to try to spin it. Once the Supremes speak the party is pretty much over. There is no higher appeal… at least until a significant number of them are gone and replaced with a new slate of partisan bulldogs.

My prediction? I still think they’re going to punt on Obamacare, claiming either that the law hasn’t ripened to the point where anyone can demonstrate damages from it or that none of the plaintiffs have standing to bring the case in the first place. But if they do rule definitively one way or the other, it’s going to bring the long, hot, dog days of summer into the political kitchen well ahead of schedule.


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When things were going Obama’s way, he was calm, cool, and cocky. Now, his behavior and actions (especially yesterday) is of a spoiled child not getting his way.

Obama’s two little birdies have given him the heads up that these soon to be released rulings by the SCOTUS aren’t going to go his way.

RedRobin145 on June 16, 2012 at 7:58 PM

My prediction? I still think they’re going to punt on Obamacare, claiming either that the law hasn’t ripened to the point where anyone can demonstrate damages from it or that none of the plaintiffs have standing to bring the case in the first place.

They’re not going to punt… and she alluded to that fact herself by referring to how to split up the law.

You can guarantee they struck down the mandate… probably because the mandate mandates too much that you know you may not need.

ninjapirate on June 16, 2012 at 8:00 PM

The Constitution was written by honorable men who believed that taking an oath meant… taking an oath.

With a few exceptions, the Justices, Federal Judges, President and Congress view their swearing in ceremonies as a photo-op and nothing more.

WestTexasBirdDog on June 16, 2012 at 8:01 PM

They say that in 1933 Jean Paul Sartre had a ferocious argument with Simone de Beauvoir in a Parisian cafe in which she questioned his lovemaking abilities. To spite her, he obtained a live grouper from a fishmonger on the banks of the Seine and proceeded to “simulate” sexual relations with it in public. “Espece de garce bourgeoise!” he exclaimed triumpantly, as he spat in Simone’s general direction and tossed the bemused fish into the river.

Legend has it that the grouper swam the Atlantic and gave birth to a weird hybrid creature, who was adopted by a Brooklyn Jewish couple.

spiritof61 on June 16, 2012 at 7:29 PM

Dear Lord, that is divine!!!!

Rixon on June 16, 2012 at 8:02 PM

Ginsburg noted that one ACA-related question the court must decide is whether the whole law must fall if the individual mandate is unconstitutional — “or may the mandate be chopped, like a head of broccoli, from the rest of it?”

Why would they need to decide that unless they already found the mandate to be unconstitutional?

The mandate’s constitutionality would (should) not be based on it’s severability.

Oxymoron on June 16, 2012 at 8:08 PM

My prediction? I still think they’re going to punt on Obamacare, claiming either that the law hasn’t ripened to the point where anyone can demonstrate damages from it or that none of the plaintiffs have standing to bring the case in the first place

I don’t know anyone else who believes that.

Also, there is plenty to Democrats could “plan to do” if any or all of Obamacare gets struck down. An LBJ would already have multiple bills loaded in catapults.

Chriscom on June 16, 2012 at 8:11 PM

Ruth Bader-MIENHOFF.

’nuff said.

Rixon on June 16, 2012 at 8:14 PM

When she starts looking like a pleased constipated prune, I’ll start worrying.

Aardvark on June 16, 2012 at 8:28 PM

Nah. I still say it gets overturned 6-3. Kennedy will vote no and at least one libby will jump ship.

If Obamacare is constitutional, then anything is, and that makes the Supremes are irrelevant and powerless. Even liberal justices like to be relevant and powerful.

bitsy on June 16, 2012 at 8:48 PM

Ruth hungers for the salvation of the hunger games. I welcome her to seek new opportunities somewhere she prefers like South Africa. She’s smart but not enough to see the ether. It’s constitutional patriotism (the teabaggers) and they are/it is everywhere. They’re AMERICANS OF ALL RACE, CREED, COLOR.
Treason may be something Ruth has to learn the definition for. Imagine Ruth, the great supreme court justice in dire need of a good lawyer.
South Africa baby. You’ll like it.

onomo on June 16, 2012 at 8:52 PM

She reminds me of the Russian “spy” with a blade in her shoe
in one of the James Bond movies.

BTW, a heads up that Encore is showing all the Bond movies starting
the early part of July. This will be the first time you can
see them on tv without commercials (or those silly host conversations). Get your DVR’s ready!

Amjean on June 16, 2012 at 8:52 PM

Obama knows – that comment he made at that one fundraiser about needing a second term to redo the healthcare law makes me sure he knows.

gophergirl on June 16, 2012 at 7:54 PM

I must have missed it. What did he say?

bitsy on June 16, 2012 at 8:52 PM

“Congressional Democrats who wrote Barack Obama’s health care plan into law say they’re getting virtually no guidance from the White House on how to deal with the fallout if the Supreme Court overturns any part of the law”.

That in itself is a clear indication that the outcome has leaked to the White House, probably by Kagen. And the fact that there is “no guidance from the White House….” should indicate that the court has punted and Obamacare will stand. Why waste time dealing with defeat plans when there is victory ahead for Obamacare?

Obama, knowing in advance from Kagen that he had won the favor of the court, then went for the Triple Crown when he ruled on the illegals. All of his promises are coming to fruition just before the election in November, and this will put Obama in for another four long years.

He’s won over the gays, he’s won over the illegals and all Hispanics for the most part, and his crowning glory (Obamacare) is in the bag. With the Godfather in Chicago claiming that pot should probably be legalized, that will come about in October just in time for one big re-election party where all his people will be under the influence of drugs while celebrating.

This is the end of our country as we know it and it will only get much worse from here.

metroryder on June 16, 2012 at 9:01 PM

Punting would be cowardly.

Cindy Munford on June 16, 2012 at 9:03 PM

This is the end of our country as we know it and it will only get much worse from here.

metroryder on June 16, 2012 at 9:01 PM

Yes and don’t forget that house call from Quetzalcoatl on December 21.

spiritof61 on June 16, 2012 at 9:13 PM

I must have missed it. What did he say?

bitsy on June 16, 2012 at 8:52 PM

Several weeks ago. Fundraiser in NYC where no cameras or cell phones were allowed and he made the comment that he “needs a second term to fix healthcare.”

That is almost a direct quote. Take it for what it’s worth.

Rixon on June 16, 2012 at 9:15 PM

“Sharp disagreements” would mean a 5-4 decision, wouldnt it? I dont think Kennedy would defect to the liberals without taking Roberts with him. If they upheld the law, Roberts would wat to write the opinion himself to make sure that it is as narrow as possible.

So isnt Ginsy implying here that the law goes down?

Valkyriepundit on June 16, 2012 at 6:12 PM

To throw a scare at the pessimists with what I highlighted, I saw Nanzi Piglosi saying yesterday, rather confidently, that she believed the vote is going to go 6-3 in her favor…

Bizarro No. 1 on June 16, 2012 at 9:18 PM

Ginsburg should have been borked. Who was more demonstrably extreme? Yet she was confirmed 96-3! She’s exhibit a for how the GOP did not then, does not now, and probably will never play the game for keeps. Same with Kagan. Elect the current clown again and you get 2-3 more of the same, and then for the USA as we’ve known it (until recently) it’s game over, man, game over. This is not a drill.

curved space on June 16, 2012 at 7:11 PM

Sorry, some of our posters put their sense of personal political purity over consideration of who nominates the next justices.

slickwillie2001 on June 16, 2012 at 9:19 PM

“Congressional Democrats who wrote Barack Obama’s health care plan into law say they’re getting virtually no guidance from the White House on how to deal with the fallout if the Supreme Court overturns any part of the law”.

That in itself is a clear indication that the outcome has leaked to the White House, probably by Kagen. And the fact that there is “no guidance from the White House….” should indicate that the court has punted and Obamacare will stand. Why waste time dealing with defeat plans when there is victory ahead for Obamacare?

Obama, knowing in advance from Kagen that he had won the favor of the court, then went for the Triple Crown when he ruled on the illegals. All of his promises are coming to fruition just before the election in November, and this will put Obama in for another four long years.

He’s won over the gays, he’s won over the illegals and all Hispanics for the most part, and his crowning glory (Obamacare) is in the bag. With the Godfather in Chicago claiming that pot should probably be legalized, that will come about in October just in time for one big re-election party where all his people will be under the influence of drugs while celebrating.

This is the end of our country as we know it and it will only get much worse from here.

metroryder on June 16, 2012 at 9:01 PM

There is one wild card I’ll mention which you are leaving out here – F&F. I’m not worried about Him surviving it, not at all.

And, even if He were to, I would still bet against Him winning in November anyway, because, being an emotionless non-hysteric, I have confidence in someone who possesses the kind of intelligence Romney does. :)

Bizarro No. 1 on June 16, 2012 at 9:30 PM

Rixon on June 16, 2012 at 9:15 PM

Ah. Thanks.

bitsy on June 16, 2012 at 9:41 PM

The Justices absolutely do keep track of their own press coverage and are aware of the ebb and flow in the tide of public opinion.
Lady Justice may be blind, but she definitely has access to cable TV.

excerpt: Jazz Shaw

.
A politicians priorities.

listens2glenn on June 16, 2012 at 10:19 PM

Careful not to tip her hand on the court’s ruling….

She tipped her hand. The key words here are “controversial case” and “sharp disagreement”. If the decision had gone her way she would never use these words to describe the ruling. It is clear that she has a “sharp disagreement” to the ruling and is thus deemed a “controversial case”. She would never describe Roe vs Wade as a “controversial ruling” or one that provokes “sharp disagreement” even though it was and does. It is clear that her vote was in descent and we all know what her liberal vote was.

Dollayo on June 16, 2012 at 10:45 PM

It is obvious from Barry’s meltdown following the first vote that he was leaked the results and it was not good for him. The mandate is gone. Whether the whole thing is struck that’s less clear. I’m leaning yes.

bluesdoc70 on June 16, 2012 at 10:52 PM

You read it here first

7-2 – mandate is unconstitutional

5-4 – the law stands less the mandate

Roberts’ compromise – Opinion written by Kennedy

ArthurMachado on June 16, 2012 at 10:54 PM

The initial vote was on a Friday. The following Monday, Zero starts trying to intimidate the SC from behind a mic.

Then the “I need a second term to fix health care” comment.

Then the absolute crumbling of his campaign starting in April with the dog eating debacle.

I think it’s going down. And the fact that the O Team has no plans as to what to do next doesn’t mean they know something. It means they haven’t a clue what to do. They’re in full panic mode, and they’re shooting their wad early will all this gay and illegal sideshow stuff.

If the whole thing goes down, which I’m hopeful it will, (I can still hear Kennedy asking with incredulity how he or an assistant is supposed to go line by line through 2700 pages?!?) then I’m shooting off my 4th of July fireworks early and doing a Snoopy dance in the streets.

If it doesn’t go down, Romey wins by an even bigger margarin than he would have otherwise. Win/win

Don’t loose sleep people. It’s all going to be alright in the end.

parteagirl on June 16, 2012 at 11:07 PM

parteagirl on June 16, 2012 at 11:07 PM

scalia – invoked the 8th amendment – no cruel or unusual punishiment – when talking about the work involved in cutting the mandate out of obamacare – not kennedy

ArthurMachado on June 16, 2012 at 11:13 PM

I sometimes wonder about the RINOs at HA that write the pieces and give their opinions.

The whole bill is unconstitutional because the Federal Government has no business being in health care at all – and the unconstitutional expansion of Article I, section 8, clauses 1 and 3 are a direct consequence of the damage FDR did to the court between 1937 and 1943.

The mandate will be struck down and along with it the the Law’s “guaranteed issue” and “community rating” provisions, as well, if for no other reason than Obama’s own DOJ said this should be done during the third day of oral arguments. But why go through the bill at all. They intentionally left out the a severability clause anyway. Pay them back for their arrogance and horrendous oral arguments and kill the whole thing.

But if they leave anything standing- we should be ready to use “nullification” in the states to stop this legislative trash that no one read before they passed it! And realize the below facts about our SCUS.

As constitutional scholar Edwin Vieira (PhD, JD Harvard) notes in his two volume work “Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution;” “Blackstone’s Commentaries was the standard legal treatise for Americans when the Constitution was written and its discussion of the law was used extensively by the Founders. The Supreme Court is not supreme – because as Blackstone pointed out “whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.”

“The real Federal government consists of 5 parts, the Congress, President, Judiciary, the states, and We The People. Each of these Branches of government has the right, power, and duty, to support and defend the Constitution because Congress/Pres/judges/state officials because of the oath of affirmation from them to that effect, and We The People because the people were responsible for the “ordain[ing] and establish[ing]” of the Constitution in the first place, and ultimately control its substance through the process of amendment. Congress does exercise political supremacy because it can impeach judges and the President. But it must have its actions ratified or rejected by the electorate. Thus, ultimate supremacy lies with We The People. And supremacy must lie there: For if the principals cannot decide the meaning of their own supreme law, it is absurd to believe their mere agents can.”

The original intent of our Constitution can be changed by amendment only and that’s it. The Federal Government is our agent and not the other way around. It should not be dictating to “We The People.” Our Constitution was put in place to protect our unalienable rights and operate through the rule of law not through the tyranny of simple majorities. The commandment is “Thou Shall Not Steal” it is not “Thou Shall Not Steal, Except By Majority Vote.”

Falcon46 on June 16, 2012 at 11:43 PM

air_up_there on June 16, 2012 at 6:53 PM
I bet that you believe that Ron didn’t sign off on Rand’s endorsement of Romney.
We don’t want to hear a word from you if you write in Ron Paul’s name. His own son will be voting for the ONLY person that has a chance of ousting Obama.
PS: I’m a libertarian and can’t wait for Paul Pot to retire. You Paulistinians give the rest of us libertarians a bad name.
Resist We Much on June 16, 2012 at 7:02 PM

No way you are a libertarian. If Ron endorsed Romney, I’d write in Tico the Squirel. It’s not about Ron or any person, it’s about liberty and it’s people like you that keep voting these loons in. Romney?! Really?! You’re voting for him and you’re a libertarian? I think not. Tell me how Romney and Obama are different, other than infanticide? I would rather have Obama over Romney so we can go ahead and end it and start over. Are you really are putting faith in Romney to turn it around? Give me a break and save the ” I’m a libertarian mantra for someone that buys it. Obama is pulling the band-aid off quickly and Romney is pulling it off slowly, the end result is the same.

air_up_there on June 17, 2012 at 12:15 AM

Clearly she knows shes about to lose and is trying to get in front of the news. Remember losers complain and winners gloat; she wasn’t gloating.

Tater Salad on June 17, 2012 at 12:17 AM

No way you are a libertarian. If Ron endorsed Romney, I’d write in Tico the Squirel. It’s not about Ron or any person, it’s about liberty and it’s people like you that keep voting these loons in. Romney?! Really?! You’re voting for him and you’re a libertarian? I think not. Tell me how Romney and Obama are different, other than infanticide? I would rather have Obama over Romney so we can go ahead and end it and start over. Are you really are putting faith in Romney to turn it around? Give me a break and save the ” I’m a libertarian mantra for someone that buys it. Obama is pulling the band-aid off quickly and Romney is pulling it off slowly, the end result is the same.

air_up_there on June 17, 2012 at 12:15 AM

No room for any dissent, eh? lol

You make me laugh like every other cultish, humorless, arrogant boob who sets her-/himself up as the arbiter of what constitutes “true” commitment to whichever particular article of faith you’re demanding adherence to.

Bizarro No. 1 on June 17, 2012 at 6:23 AM

Mr. Arkadin on June 16, 2012 at 5:30 PM

6-4?

bernzright777 on June 16, 2012 at 5:37 PM

O.K., O.K., I was rushed when typing, and got back late.

6-3 against the mandate; the rest of the law still stands. Sotomayor joins the majority.

Mandate struck down and rest of bill intact is why Jug Ears has been talking about “fixing” Obamacare during his second term.

Mr. Arkadin on June 17, 2012 at 6:26 AM

I saw Ginsburg on CSPAN at ACS. The “quip” was actually her quoting a well known proverb, and the all out of context quotes she was giving stats on votes for rulings and mentioning cases left (21 if I remember correctly); and she was accurate that the remaining cases are fairly intense and probable 5-4′s).

She was introduced by Jerry Rubin, founder of ACS, and of course the usual misrepresentation of the Citizens United case. Ginsburg did no better when she dropped the veil of impartiality; full feminism, progressivism, whatever and her terrible reasoning in Lilly Ledbetter and subsequent legislation addressing her opinion on the case.

Overall she’s garbage, but atleast she has some decorum.

John Kettlewell on June 17, 2012 at 6:42 AM

logis on June 16, 2012 at 5:05 PM

I can only dream of having chops like that, one day.
Nicely stated.

mickytx on June 17, 2012 at 6:44 AM

That photo is one sour puss face HotAir

Weaned on lemon juice ?

BigSven on June 17, 2012 at 6:58 AM

Sorry, some of our posters put their sense of personal political purity over consideration of who nominates the next justices.

slickwillie2001

Yes. Besides being counterproductive, shows an ostentation unbecoming of a conservative anywhere in the spectrum.

There’s a movie most have probably seen called Dr Strangelove. Required viewing for many reasons and for all it’s satiric treatment of the military it’s actually a fairly conservative work. (The president explains to the drunk Soviet premiere that the plane may get through because the crew is trained to have initiative.) General Ripper, who initiates the crisis, raves about Purity of Essence. He’s a madman.

Judges at any level are where the rubber meets the road. Anyone who’s been before one for any reason (and I’d say we’d have a near-unanimous show of hands here) can attest to that. SCOTUS is the rubber and the road. The Reds have always known this. The white shoes GOP of times past either didn’t know or didn’t care. A court with 2-3 more Kagan/Ginsburgs will effect law for 100-150 years down the line. Warping of the Constitution would continue and the abuses of the current gang — and which would continue for another four years — would be ratified and codified. sans Congressional input.

You draw cards in poker, you never really know which cards will come, but you look at what’s in your hand and you decide the percentages. With the Obama Cell in the White House through 2016 America will be drawing dead.

curved space on June 17, 2012 at 8:50 AM

With a few exceptions, the Justices, Federal Judges, President and Congress view their swearing in ceremonies as a photo-op and nothing more.

WestTexasBirdDog on June 16, 2012 at 8:01 PM

You must have missed the moment in Ginsburg’s swearing in ceremony where she respectfully declined her appointment because “if I were drafting a constitution in the year 2012, I would not look the the United States Constitution”. I missed it too.

Finbar on June 17, 2012 at 9:48 AM

karenhasfreedom on June 16, 2012 at 5:14 PM
Pray it is so, Karen.

mickytx on June 17, 2012 at 11:47 AM

sicoit on June 16, 2012 at 7:12 PM
Hitting all the right notes.

mickytx on June 17, 2012 at 11:50 AM

WestTexasBirdDog on June 16, 2012 at 8:01 PM
Wow. You cats leave me with nothing more to say, so I’ll just cheerlead.
Wonderful stuff. That’s why I live and thrive here.
Oh hell yes!

mickytx on June 17, 2012 at 11:58 AM

ArthurMachado on June 16, 2012 at 10:54 PM

I essentially agree

6-3 the mandate is unconstitutional
5-4 the law stands

But taking the mandate out of this POS is the same as taking the heart out of the beast.

MaiDee on June 17, 2012 at 1:25 PM

Ginsburg is not revealing how she is going to rule on this is hilarious. Is she so senile that she thinks her opinion is not known already by anyone with a single digit IQ? We know, and will always know, how this poor excuse of a human being, much less a Supreme Court justice, is going to vote on every case. She is a human rubber stamp.

volsense on June 17, 2012 at 3:16 PM

Hahaha. Seriously? This is B.O. we’re talking about and there are numerous laws he is not defending.

Buy Danish on June 16, 2012 at 6:20 PM

I don’t disagree with you on that, I must have misinterpreted the original post as meaning that Obama has the right to ignore the Supreme Court ruling, and whatever laws are on the books, if he doesn’t like them. My mistake.

totherightofthem on June 18, 2012 at 9:59 AM

The stench reminds me of bluegill, could have sworn for a moment she was the problem, must be Ginsberg.

Bmore on June 18, 2012 at 11:43 AM

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