Oh my: Is Ginsburg writing the main ObamaCare dissent?

posted at 8:01 pm on June 25, 2012 by Allahpundit

Via DrewM, I’m embarrassed that it didn’t occur to me in the other post to ask whether any of the Court’s liberals have taken on a conspicuously lighter workload lately. Sotomayor’s written the fewest among the Court’s left wing, according to Sean Trende, but that might be due to the fact that she’s a junior justice and isn’t getting as many assigned to her.

What’s Ginsburg been up to, though?

There are three cases left on the court’s docket, and the cases will be released in reverse order of the authoring justice’s seniority — beginning with Justice Elena Kagan, the newest justice.

Chief Justice John Roberts is expected to author the majority ruling in the health case — because of its significance and because Justice Anthony Kennedy authored the Arizona opinion, which was the second most controversial case of the term. Plus, neither he nor Justice Ruth Bader Ginsburg have published any opinions since May 24. During that time, every other justice has published at least two majority opinions.

Here’s the list of slip opinions for the term at the Court’s website. Since May 21, every justice besides Roberts and Ginsburg has authored at least two majority opinions. It’s a lead-pipe cinch that there’ll be some enormous omnibus dissent responding to the majority in the ObamaCare case, and since Roberts is almost certainly writing for the Court, that leaves RBG as the likeliest suspect for the dissent. Which means the mandate, and maybe the entire statute, is going bye bye.

Or … does it mean something more complex? More from that Politico piece:

The court could strike all of the remaining law, none of the remaining law, just two key insurance reforms, or something in between. So there could be three or more coalitions of justices with similar views, resulting in some kind of 3-4-2 vote breakdown…

For instance: the three most conservative justices could argue that the whole law should come down with the mandate. The four liberal justices could say that the whole remainder of the law should remain in place. And two justices could say that the mandate and insurance reforms should fall. In that case, the four justices would have the most votes, but they wouldn’t have a majority.

So the coalition of three and two justices would essentially combine, and the least common denominator — striking the mandate and insurance reforms — would be the law of the land.

Yeah, given the multiplicity of issues involved in this case, it’d be amazing if there wasn’t a clusterfark of plurality opinions on Thursday morning. Which makes me think, what if they’re splitting the opinion in two, with Roberts writing for five justices on the mandate, say, and Ginsburg writing for five justices on the Medicaid expansion and severability? (Politico notes that this is possible.) Maybe that’s why she’s been quiet for so long — she’s trying to piece together a majority opinion of her own and reworking it as her colleagues object to certain passages in her draft.

Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?


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Politicians aren’t suicidal……

joana on June 25, 2012 at 8:45 PM

Marjorie Margolies-Mezvinsky

Resist We Much on June 25, 2012 at 10:10 PM

Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

Not even close. That would show that the Court likes making law up all on their own – a law that no one in Congress voting for it even read. How much crazier can governance get?

Either this whole law goes into the trash heap of history or ther is not even a veneer of respectability left to the SCOTUS – not that there’s even much left after Kennedy’s idiotic opinion and use of the term “illegal immigrant”, as if the second an alien breaks through our border he becomes an “immigrant”.

ThePrimordialOrderedPair on June 25, 2012 at 10:11 PM

You guys forget something very important in all this. Human nature. Alito detests this president for trying to bully the court in his state of the union speeches and the recent meltdown. No way he gets his healthcare legacy. NO WAY. This group of justices would be in open warfare if the conservatives lost after all Obama has done to insult them. The boy king gets crushed.

pc on June 25, 2012 at 10:12 PM

If indeed Roberts is writing the majority, and Ginsberg is writing the dissent, then it seems extraordinarily likely that the mandate will be struck down, which is what I want first and foremost.

Now I don’t know exactly HOW likely it is that we’re going to see Ginsberg write the dissent, there’s a certain amount of tea leaf reading going on and while it seems well reasoned I don’t think anybody can say for certain this is whats going to happen yet.

Still, know on wood, I’m feeling reasonably good about things.

WolvenOne on June 25, 2012 at 10:14 PM

pc on June 25, 2012 at 10:12 PM

I have been saying that all day.

bitsy on June 25, 2012 at 10:16 PM


Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

Ultimately, no. But maybe Congress has to do some work for a change.

AshleyTKing on June 25, 2012 at 10:09 PM

I feel safer when they leave town.

Philly on June 25, 2012 at 10:16 PM

Sorry for the strikeout.

Philly on June 25, 2012 at 10:16 PM

Yeah, AP was hypothesizing that if the vote was 5-4 to uphold, that Roberts would switch to the uphold side and write the 6-3 to uphold opinion. Doesn’t makes much sense for a judge to author a SCOTUS opinion that he doesn’t even agree with, but what do I know.

blink on June 25, 2012 at 8:58 PM

Rehnquist used to do it:

Many court watchers have observed that his more surprising opinions, such as 2003′s Hibbs v. Nevada Department of Human Resources — which allowed state government workers to sue their employers under the federal Family and Medical Leave Act — may have had tactical motivations.

In that case, as in other instances in which he disagreed on principle but was outnumbered, Rehnquist switched his vote in order to write the opinion himself and prevent precedent for future outcomes he’d find even more unacceptable. Rehnquist’s willingness to accept majority opinion and to compromise has set him apart from Scalia and Thomas, both hardliners when it comes to constitutional interpretation

.

Dawnsblood on June 25, 2012 at 10:18 PM

The easiest to read tea leaf was Obama’s most recent series of hissy fits against SCOTUS. If he had heard nothing, then he would assume things are going his way because he is arrogant like that. The fact that he felt the need to lash out says loud and clear that he heard a reliable leak, and he didn’t like what he heard.

bitsy on June 25, 2012 at 10:18 PM

Except if Zero declares martial law and cancels the election.

Philly on June 25, 2012 at 9:36 PM

I’d want to see all 50 Secretaries of State to tell him to go take a very long walk off a very short pier.

PatriotGal2257 on June 25, 2012 at 10:20 PM

It is by the juice of Sapho that thoughts acquire speed, the lips acquire stains, stains become a warning. It is by will alone I set my mind in motion.

minnesoter on June 25, 2012 at 10:21 PM

You guys forget something very important in all this. Human nature. Alito detests this president for trying to bully the court in his state of the union speeches and the recent meltdown. No way he gets his healthcare legacy. NO WAY. This group of justices would be in open warfare if the conservatives lost after all Obama has done to insult them. The boy king gets crushed.

pc on June 25, 2012 at 10:12 PM

They also have family members and close friends who will be subject to O-Care. And human nature being what it is, I’m sure the justices got an earful when O-Care was signed by BHO into law.

GrannyDee on June 25, 2012 at 10:25 PM

Politicians aren’t suicidal……

joana on June 25, 2012 at 8:45 PM

Marjorie Margolies-Mezvinsky

Resist We Much on June 25, 2012 at 10:10 PM

Exactly: the fact that Marjorie Margolies-Mezvinsky is still famous after all this years for her vote switch shows how unusual and rare those events are.

The congress won’t commit mass suicide – especially the Republican caucus – by voting to implement an uber-unpopular measure like single-player with the purpose of saving a super-unpopular legislation like Obamacare.

Once insurers start increasing premiums, they’ll just say “see, Obamacare without the mandate doesn’t work, we have to repeal it”. If we get the Dems to take the other side of that argument for awhile, that’s the best case scenario.

joana on June 25, 2012 at 10:25 PM

You guys forget something very important in all this. Human nature. Alito detests this president for trying to bully the court in his state of the union speeches and the recent meltdown. No way he gets his healthcare legacy. NO WAY. This group of justices would be in open warfare if the conservatives lost after all Obama has done to insult them. The boy king gets crushed.
pc on June 25, 2012 at 10:12 PM

Cut, jib, newsletter….

TeresainFortWorth on June 25, 2012 at 10:26 PM

The easiest to read tea leaf was Obama’s most recent series of hissy fits against SCOTUS. If he had heard nothing, then he would assume things are going his way because he is arrogant like that. The fact that he felt the need to lash out says loud and clear that he heard a reliable leak, and he didn’t like what he heard.

bitsy on June 25, 2012 at 10:18 PM

Or he was positioning himself as a leader who the SC trembled from his words and changed their views and passed his ocare as constitutional because he is the messiah

Conservative4ev on June 25, 2012 at 10:29 PM

And it very well could be her last case. She will retired fully aware that Obama’s relection are kaput and the dream of a progressive supreme court now and in the future buried with Obamacare and this administration. He last successful volley will be to resign and allow a younger Kagen like appointment to take up the cause only to realize that Kennedys replacement will be far more to the right,Souter a year later far more to the right and a SCOTUS that will once and for all hold these truths to be self evident. The constitution is a document for the limiting of Goverment and not it empowerment and with it the socialist road fully demolished.
Hip hip hurruh.

nicknack60 on June 25, 2012 at 10:04 PM

Scalia and Thomas are telling Ginsburg every day that little Bammie has reelection in the bag, don’t worry. They feed her press releases from Daily Koss and Media Matters and their friendly polls. Relax Ruthie, you’ve got a few years to go.

slickwillie2001 on June 25, 2012 at 10:29 PM

You guys forget something very important in all this. Human nature. Alito detests this president for trying to bully the court in his state of the union speeches and the recent meltdown. No way he gets his healthcare legacy. NO WAY. This group of justices would be in open warfare if the conservatives lost after all Obama has done to insult them. The boy king gets crushed.

pc on June 25, 2012 at 10:12 PM

I highly doubt that, they see it as politics and stay above it

Conservative4ev on June 25, 2012 at 10:31 PM

Lovely earrings.

minnesoter on June 25, 2012 at 10:42 PM

Mandate gone, minimum coverage provision gone, rest of law upheld. Roberts writes the opinion which says Congress can impose an individual mandate to buy insurance but must use its taxing power and call it a tax, cannot do it under the Commerce Clause and must allow people to buy a minimum coverage/minimum cost policy. Liberals will dissent on the mandate, conservatives will dissent on upholding the rest of the law.

This is what Kennedy will support, so that is what we will get.

rockmom on June 25, 2012 at 10:44 PM

I predict:

Mandate struck down 7-2, with the Wide Latina and Kagan dissenting. The Wide Latina writes the dissent.

All of Obamacare struck down 5-4, Buzzy Ginsburg writes the dissent.

wildcat72 on June 25, 2012 at 10:44 PM

Is it just me…or does she look like the teacher in “Animaniacs”?

kingsjester on June 25, 2012 at 10:52 PM

What are all these Obamascare hypothesizers and tea leaf readers gonna do after the ruling is announced? This is ridiculous.

stukinIL4now on June 25, 2012 at 10:53 PM

Sorry for the strikeout.

Philly on June 25, 2012 at 10:16 PM

Happens to me all the damn time. They really need to space those buttons apart a little bit.

squint on June 25, 2012 at 10:59 PM

rockmom on June 25, 2012 at 10:44 PM

I need a drink after that analysis.

WisRich on June 25, 2012 at 11:06 PM

rockmom on June 25, 2012 at 10:44 PM
don’t think the judicial branch writes the laws. have tough enough job interpreting them….then there’s o who doesn’t execute what’s on the books and makes up rules as he goes along. the petulant brat’s acting like he knows his health care show’s goin’ down.

gracie on June 25, 2012 at 11:09 PM

My two cents on Ginsberg writing the dissent: It could very well be her swan song. If just the mandate is struck, Ginsberg may not yet retire, but if the the whole of Obamacare is declared unconstitutional , she’s going to retire. She’ll realize she will want her replacement named by a Democrat AND confirmed by a Democrat majority controlled Senate. Seeing Obamacare struck in its entirety will “wake her up” to ensure a Democrat replaces her.

Good luck getting a SCOTUS nominee through the Senate AND confirmed in the midst of the Presidential election; then Obama will try to make a temporary replacement to SCOTUS if he can get away with it.

Jurisprudence on June 25, 2012 at 11:12 PM

Sotomayor’s written the fewest among the Court’s left wing, according to Sean Trende, but that might be due to the fact that she’s a junior justice and isn’t getting as many assigned to her.

But it could be because she has noted limitations in her abilities to write in understandable form and method. This was well documented leading up to her hearings before the Senate for her nomination to the Court.

Lourdes on June 25, 2012 at 11:21 PM

OmahaConservative on June 25, 2012 at 8:40 PM

…that’s good Omaha!…his age and the word pneumonia was very scary!

KOOLAID2 on June 25, 2012 at 11:22 PM

Is it just me…or does she look like the teacher in “Animaniacs”?

kingsjester on June 25, 2012 at 10:52 PM

Alright, folks, lock the thread, it’s over. You can’t top that.

Dunedainn on June 25, 2012 at 11:28 PM

Hot Air sucks.

Rixon on June 25, 2012 at 8:41 PM

…I see your cypher name…what a coincidence that your birth certificate reads the same as our blog!…Mr. Air! You shouldn’t bend down so hard… and it MUST BE very strenuous to swallow from that contorted position!
You really shouldn’t amuse yourself that way Hotty!

KOOLAID2 on June 25, 2012 at 11:31 PM

Mandate gone, minimum coverage provision gone, rest of law upheld. Roberts writes the opinion which says Congress can impose an individual mandate to buy insurance but must use its taxing power and call it a tax.

rockmom on June 25, 2012 at 10:44 PM

Exactly right, rockmom. That will be the grand compromise which will save SCOTUS’s reputation. Whew! Close call on that one for SCOTUS. They just dodged a bullet.

After that, a stalemated and dysfunctional Congress will be forced to take up the matter. Liberals will argue that the mandate needs to be rewritten as a tax as Roberts suggests. Conservatives will balk, though, citing Scalia’s and Thomas’s certain dissent. So nothing will get done, but Obamacare will still be with us only now unfunded. It will be similar to the annual national budget which the Senate has illegally ignored now for three years. Eventually, the insurance companies will go broke.

Then, after that, our debt will overwhelm us and there will be rioting, bitterness, collapsed currency and chaos.

This is assuming that Romney’s elected prez; if Obama’s reelected, it will, of course, be far worse.

Burke on June 25, 2012 at 11:36 PM

Ginsberger

Margaret Sanger would be proud, you get to defend the Death Panels that will help get rid of more “weeds”

PappyD61 on June 25, 2012 at 11:37 PM

Is it just me…or does she look like the teacher in “Animaniacs”?

kingsjester on June 25, 2012 at 10:52 PM

Alright, folks, lock the thread, it’s over. You can’t top that.

Dunedainn on June 25, 2012 at 11:28 PM

Rush Limbaugh always calls her Ruth Buzzi Ginsberg.

But I’ll go that one better. SCTV Station Manager Edith Prickley.

Del Dolemonte on June 25, 2012 at 11:52 PM

Except if Zero declares martial law and cancels the election.

Philly on June 25, 2012 at 9:36 PM

I’d want to see all 50 Secretaries of State to tell him to go take a very long walk off a very short pier.

PatriotGal2257 on June 25, 2012 at 10:20 PM

A few years ago… I’d have laughed that off… nobody laughs when you say that now, which is the really frightening thing.

I’m a bit busted up to join a second revolution.. but what the Hell.. he does it, I’m in, and I’d expect a great many millions more of us as well. It’s our country… and we kicked a King out once before, we can again.

mark81150 on June 25, 2012 at 11:54 PM

I already know what her dissent is going to say. It was written by George Orwell: “If you want a picture of the future, imagine a boot stamping on a human face, forever.”

scrubjay on June 25, 2012 at 11:58 PM

Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?
Short answer. No and hell no!

Root and branch.

All other outcomes lead us to a failure of our
Constitutional Republic, such as it is today.
Failure is not an option.

mickytx on June 26, 2012 at 12:02 AM

There are three cases left on the court’s docket, and the cases will be released in reverse order of the authoring justice’s seniority — beginning with Justice Elena Kagan, the newest justice.

Kagan can write ?

I thought her communications skills were limited to one stomp for what Obama wants and two stomps for what Obama wants.

viking01 on June 26, 2012 at 12:07 AM

It’s more likely Ginsburg is writing for the majority supporting Obamacare.

xblade on June 26, 2012 at 12:08 AM

Good Enough?

No, Nuke the whole nanny-state concept. Nuke It.

Who is John Galt on June 26, 2012 at 12:10 AM

My constructive comments:

I absolutely despise that woman. I have more to say, but it would be unChristian of me.

FlatlanderByTheLake on June 26, 2012 at 12:12 AM

Unless something has changed…I have seldom seen a more implied 2 + 2=4 than Barry’s hissy fit/lecture immediately following the initial vote. He had to have gotten a heads up.

bluesdoc70 on June 25, 2012 at 8:57 PM

All Obama has, all he is about, is, in essence, his resentment of and antagonism about the U.S.A.

I do believe his impetus in needing to be President was to do as much ill to this nation as he could — thus, he viewed that Office as goal because he assumed that’d be how he could accomplish just that, doing as much harm to this nation as he could.

Never seen such a terrible presence in our nation’s Executive Branch, never before. With Carter, at least he was recognizably, in his heart, intent on good despite his misguided conclusions (ongoing), but with Obama, in his essence, I do believe there is substantial animosity there about the U.S.

Lourdes on June 26, 2012 at 12:21 AM

My money says we get a decision. The rest is a waste time until it comes.

BullShooterAsInElk on June 26, 2012 at 12:21 AM

Oh fishing magician.
Bishop on June 25, 2012 at 8:15 PM
Do you have all the iterations worked out?
Yep, word play always results in a stitches laugh.
I can’t be far from the looney bin.

Still waiting for the post-turtle and crybaby
to weigh in on it all. Maybe, we’ll hear too from
Sen. ‘my friends’. A trifecta of rino fail.

George Wallace has been right all along.
Not a dime’s worth of difference.

Of, course, here in TX we can’t hardly wait
for the next quotation from the ‘crown-weave’.
Apologies to all styled gals who wear same.
SJL, how do the ‘vunables’ figure into all of this
in your ‘esteemed’ opinion?

mickytx on June 26, 2012 at 12:23 AM

Is it just me…or does she look like the teacher in “Animaniacs”?

kingsjester on June 25, 2012 at 10:52 PM

Alright, folks, lock the thread, it’s over. You can’t top that.

Dunedainn on June 25, 2012 at 11:28 PM

I agree.

Hellloooooo nurse.

The Rogue Tomato on June 26, 2012 at 12:23 AM

I’d want to see all 50 Secretaries of State to tell him to go take a very long walk off a very short pier.

PatriotGal2257 on June 25, 2012 at 10:20 PM

Which is exactly what would happen. States control how they elect their electors for the most part, not the federal government. Sure, there are regulations that the feds have put, put it’s the state that run the show. I would love nothing more than for Obama to try that. It’d completely destroy the Democratic Party for decades.

cpaulus on June 26, 2012 at 12:25 AM

Dark Star on June 25, 2012 at 9:11 PM

As Dan Rowan would say, you may be onto something.

I don’t even have a dog in this race, as O’bama exempted NH from the whole O’bamacare sham in order to Buy Votes.

But if I had to hazard a guess, I would postulate that the Mandate part gets struck down 6-3 or even 7-2 and some but not all of the rest is upheld by a “bitterly divided” 5-4 decision..

Del Dolemonte on June 25, 2012 at 9:34 PM

Thanks. I’m not trying to present myself as an expert on the polticking among the SCOTUS Justices, and of course, my “take” is no better than anyone else’s trying to read the tea leaves because one thing you can always know is no one outside the Justices & their clerks really knows how the court is going to rule until the decision is actually handed down. But I did have the honor of serving for 2 years as a judicial law clerk for a Justice on my state’s Supreme Court so I do have *somewhat* of an insight on how politicking among Justices works (although, again, a state Supreme Court, while superior to all courts in the state judicial system, isn’t the same as clerking at for the SCOTUS) as well as just how far a Justice is willing to go to compromise their judicial philosophy. Given what we know of Roberts & his integrity, I just can’t see him compromising his philosophy on a question so big — a decision that will not only dramatically expand the commerce clause, but will dramatically change the relationship between people & the government (remember, despite what the Left is saying that the mandate is no different from social security, medicare, etc — it is vastly different — those “social safety net” programs changed the people’s relationship to the government; the mandate changes the people’s relationship with private enterprise). I could be totally wrong about Robert’s integrity, but I find it very difficult to believe he would vote other that striking down the mandate (at least).

I do, however, think the outcome you outline is a definite possibility. Another thing about Supreme Courts I learned during my tenure as a clerk in my state’s Supreme Court — despite all the talk of “judicial legislating/advocacy” from both sides — the Justices, for the most part, prefer to write as narrowly as possible for fear of being perceived as being exactly what the critics accuse them of. That is why when they can “split the baby,” they usually do.

Dark Star on June 26, 2012 at 12:27 AM

I’m thinking Justice Scalia has already tipped the SCOTUS hand when he spoke recently regarding the over broad application of the commerce clause. I’m am suspecting that not only is Obamacare going to be struck down in it’s entirety, but the SCOTUS is gong to revisit the Commerce Clause and restrict it’s application as well in this ruling.

SWalker on June 25, 2012 at 8:23 PM

The hell you say. This, of course, should be the slam dunk.
I echo this sentiment. Long overdue, imo.

Does anyone know if there is reference to the
so-called ‘good and plenty clause’ within this
2700 page nightmare?

See, it says so right there…

mickytx on June 26, 2012 at 12:33 AM

OmahaConservative on June 25, 2012 at 8:40 PM
Prayers and thoughts aplenty OC

mickytx on June 26, 2012 at 12:42 AM

Obamacare flames out. Internal SCOTUS politics work to kill it by giving the Obamacare losers the majority decision in the AZ case to (temporarily) continue the facade of a ‘moderately balanced’ court.

drfredc on June 26, 2012 at 1:11 AM

does it really matter? the country with its present “leaders” is so adrift in the world that the country will fail soon anyway

unseen on June 26, 2012 at 1:16 AM

Where’s Lib4Life with her:

This is a big nothingGinsburger?

Resist We Much on June 26, 2012 at 1:49 AM

Obamacare flames out. Internal SCOTUS politics work to kill it by giving the Obamacare losers the majority decision in the AZ case to (temporarily) continue the facade of a ‘moderately balanced’ court.

drfredc on June 26, 2012 at 1:11 AM

I’m hoping it’s the first round in a Shock and Awe campaign against any laws that are remotely unconstitutional.

pedestrian on June 26, 2012 at 1:54 AM

Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

Uh, no, because the response to that from this bunch of pinkos will be, “OK, we won’t require people to buy their own private health insurance. We will just provide it ourselves.” And then we’ll be into full-blown socialized medicine. That’s what they want, after all. They don’t want to line the pockets of the insurance companies; they want to line their own pockets. The insurance companies are spectacularly stupid for ever partnering up with this administration to craft this law in the first place. These people hate capitalism, and they hate insurance companies. They’d like nothing more than to put them all out of business.

NoLeftTurn on June 26, 2012 at 2:20 AM

Question:

The mandate was part of the gimmicky accounting used to declare this clustereff as not increasing the deficit, right? Removing it definitely moves it out of the ‘budget neutral’ category by any reckoning. Couldn’t reconciliation then justifiably and unquestionably be used to deep six it?

avgjo on June 26, 2012 at 2:59 AM

Except if Zero declares martial law and cancels the election.

Philly on June 25, 2012 at 9:36 PM

I’d want to see all 50 Secretaries of State to tell him to go take a very long walk off a very short pier.

PatriotGal2257 on June 25, 2012 at 10:20 PM

You maybe forget that Soros bought more than a few of their elections?

Don L on June 26, 2012 at 3:48 AM

Probably the mandate/insurance minimums out, the rest in would be the best political outcome for Republicans, who can then campaign on repealing the remnants of a very unpopular bill. But I expect Kennedy will choose to be a stickler since the severability clause was removed before final passage, indicating intent. And it is Kennedy who was most insulted by the President’s SOTU outrage.

So I expect the above case of 7-2 against the mandate and 5-4 to kill the whole thing is within the realm of possibility. And the potential surprise vote might be Breyer joining both for 7-2, 6-3. Ginsberg makes up law out of thin air to suit leftist policies, but Breyer always makes an actual legal argument, even if sometimes he strains the logic. This case really should be open and shut.

Adjoran on June 26, 2012 at 6:12 AM

While the supremes certainly like to write narrow opinions if possible, and Kennedy (if given the choice) seems to think splitting the baby is always the highest and best outcome, the severability issue presents two big problems here.

First, Congress considered severability and threw it out. Is any Justice willing to so blatantly legislate it back in? Second, if you decide to sever the mandate and declare the rest good law then the Justices have to comsider the huge problem that most of the rest of the law was not briefed and so they have no idea what’s in it. Even the most ideological Justice won’t want to declare what she hasn’t read and hasn’t heard argued as good law.

Is it possible for the Justices to declare the mandate history but remand the remainder of the law to lower courts, perhaps saying the other portions aren’t yet timely? They have to finnesse severability somehow, and that’s one way to do it.

MTF on June 26, 2012 at 6:44 AM

Never give up. Never surrender. My take.

kingsjester on June 26, 2012 at 6:46 AM

Spinning my fantasy out one step further, what if Ginsburg pulls a Rehnquist and goes to Roberts with a deal. Suppose she says, “I will vote with the majority, and bring Breyer and WiseL along, if you let me write the majority opinion.” In these challenging times, the opportunity to put a 7-2 or 8-1 opinion on the table would be impossibly hard to resist. In return, she nails the coffin door shut on the mandate and maybe throws in a weak limiting principle of sorts on the commerce power to throw Scalia and Thomas a bone, but she gets to skate entirely on the rest of the law, without addressing severability and therefore leaving it nominally in place pending future clarification by rule, legislation or litigation.

MTF on June 26, 2012 at 6:54 AM

Hot Air sucks.

Rixon on June 25, 2012 at 8:41 PM

Go away then.

zoyclem on June 26, 2012 at 7:09 AM

Was Ginsburg even able to stay away during the several days of oral arguments on this case? That’s usually a big challenge for her.

tommyboy on June 26, 2012 at 8:08 AM

Striking the mandate and/or one or two other parts but leaving the rest of the law stand would be better than finding the entire law to be constitutional, but it will create a political and economic nightmare the likes of which have not been seen for perhaps 50 years.

First, leaving part of the law in place would leave hundreds of mandates still to be enacted with no idea of their costs or how to pay for them. Democrats will fight to the death to keep them all and Republicans will pass bills to defund or significantly reduce the scope and scale of the mandates.

Second, Obamacare authorized over one hundred new offices, panels, commissions, agencies, etc. Obama will kick into over-drive between Thursday and January 2013 to institutionalize as much of the law as possible if for no other reason that to spite Republicans (as DHS has done against Arizona). Again, there is no way to pay for these new institutions without increasing the deficit and debt.

Third, businesses, but especially small businesses will hunker down due to the enormous uncertainty about costs and penalties. The law has a nightmare formula for businesses who have 10, 20, 30, 40, 50, etc. employees. With each new step the costs and penalties change. A business with 49 employess will not hire that 50th employee because the Obamacare rules change with 50 employees. You will find that Obamacare will have a chilling effect on small businesses and will depress job growth.

Fifth, health care insurance will skyrocket into the stratosphere as insurers try to comply with unfunded mandates such as insuring those with pre-existing conditions, free birth control, free abortions, and free everything else in the law–only none of it is free.

Sixth, since most of the penalties in Obamacare are in the mandate that everyone must buy insurance, then companies will drop employee health care insurance as costs become prohibitive. Some of the larger companies will probably continue to provide such insurance, but as the competition drops theirs and they become more price competitive, other companies will soon abandon health care insurance as well. This leaves the individual holding the bag for the cost of the Congressionally created nightmare or Congress will increase spending to subsidize health care. Either will be desasterous for the economy.

I think it’s a shame that the Democrats put their idealistic universal health care agenda ahead of the economy and the individual citizen. We took a world class health care system that needed some reforms and turned it upside down and inside out without fully understanding the costs or how it would fundamentally decrease the quality of health care.

I think medical malpractice reform and allowing health care insurers to compete nationally like virtually all other kinds of insurances would immediately bring down costs without any of Obamacare–which does neither–and at no cost to the individual or government and with no additional government agencies and offices to create. Those are the kinds of reforms with which we need to begin adjusting our current health care system.

I’m on Medicare now and I can tell you first hand, that my private insurance was slightly more expensive but far better than Medicare.

Sorry for the long post. If the court doesn’t strike down the entire law, then our health care system is screwed for at least a decade into the future.

BMF on June 26, 2012 at 8:15 AM

A lot of speculations… Less than 50 people know for sure the Obamacare ruling.
If Arizona ruling is a guide to Obamcare I can “speculate” that the Supreme Court will strike down the mandates and may be one or two more clauses and then send the remaining law to Congress to see if it is workable or not. If they strike down the mandates then Obamacare is essentially finished because it loses its main funding mechanism… Even lunatic Pelosi admitted this last week.

mnjg on June 26, 2012 at 8:17 AM

I don’t know…how in the hell did they get an 8-0 ruling upholding the “show your papers” part of the Arizona law? You know damn well the libs on the court HATE that law, absolutely hate it. Was there a trade made here for Obamacare? If so, it means the manddate is NOT going down, and Ginsburg is writing the majority opinion, not the dissent.

Rational Thought on June 26, 2012 at 8:20 AM

If the mandate is gone but the must issue clause stands, couldn’t an insurance company issue a statement to the effect of “as of this date, we will no longer be issuing new individual policies”, withdrawing from the market that would have them take people with pre-existing conditions? They could still insure entire companies as a group, or is there something else in the law (or previous laws) that would prevent that?

tulloss on June 26, 2012 at 8:25 AM

A lot of speculations… Less than 50 people know for sure the Obamacare ruling.
If Arizona ruling is a guide to Obamcare I can “speculate” that the Supreme Court will strike down the mandates and may be one or two more clauses and then send the remaining law to Congress to see if it is workable or not. If they strike down the mandates then Obamacare is essentially finished because it loses its main funding mechanism… Even lunatic Pelosi admitted this last week.

mnjg on June 26, 2012 at 8:17 AM

Here’s the big question: Can SCOTUS not only declare the insurrance mandate and another section or two unconstitutional, and “conditionally” send it back to Congress if they want the rest to stand? That would be the safest option for SCOTUS politically. Send the remaining part of the surviving bill to Congress to either “fix” it, or else Obamacare dies in deadlock, which it likely would. I realize what I’m describing sounds a lot like a veto.

Jurisprudence on June 26, 2012 at 8:37 AM

Which decision would grow the power and influence of the Government?

What cases of late has the SCOTUS sided with individual liberty?

PappyD61 on June 26, 2012 at 8:44 AM

just two key insurance reforms

Reforms or screw ups? The left decries partisan language then uses it routinely.

MarkT on June 26, 2012 at 8:47 AM

This is it for Ruth Buzzi Ginsburg, regardless of whether O’Butthead goes down in flames in November or not.

If he somehow gets reelected, she steps down this winter – and there’s no way she makes it through a Romney 4 year term.

Maybe this Court can start moving back to the right again & away from wackos like her. One can only hope.

ICanSeeNovFromMyHouse on June 26, 2012 at 8:51 AM

Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

No, because it’s not workable that way. At least Title I needs to go down as well. That would leave the Medicaid expansion etc. which is horrible public policy, though I’m not sure you could call it unconstitutional.

eyedoc on June 26, 2012 at 8:58 AM

This is it for Ruth Buzzi Ginsburg,

Don’t make fun of Ruth Buzzi. She’s really cool, and would make a much better Supreme Court Justice than Ginsburg.

eyedoc on June 26, 2012 at 9:00 AM

I’d want to see all 50 57 Secretaries of State to tell him to go take a very long walk off a very short pier.

PatriotGal2257 on June 25, 2012 at 10:20 PM

FIFY!

eyedoc on June 26, 2012 at 9:03 AM

If SCOTUS rules 6-3 to uphold commie care as I believe they will, then does anyone really still believe the republic and our freedoms can be saved through the political process?

bgibbs1000 on June 26, 2012 at 9:07 AM

I’m sure Obama will find a way to just ignore anything that doesn’t go his way because he can do whatever he wants. Constitution be damned.

Wagthatdog on June 26, 2012 at 9:41 AM

AP, first you wrote this:

…that leaves RBG as the likeliest suspect for the dissent. Which means the mandate, and maybe the entire statute, is going bye bye.

Which had my heart soaring.

Then you wrote this:

Or … does it mean something more complex? More from that Politico piece…

Why must you toy with us so? ;-)

Grace_is_sufficient on June 26, 2012 at 10:04 AM

I would expect Justice Ginsburg to write something anyway. I think whatever the outcome, there will be between 3-8 concurrences and/or dissenting opinions.

And whatever the outcome, the losing side will write a scathing objection. If the whole law gets thrown out (which it should), than the liberals will say the commerce clause is being disrespected, and will try to lay the groundwork for a future case. If the mandate gets struck down, but the rest of the law remains, you will get 3 justices concurring in part and dissenting in part, saying that the Court did not go far enough, and 4 saying that they should have left the individual mandate in tact. If it gets upheld, you will have 3 scathing critiques saying the Court is doing something unprecedented and not complying with the last 25 years of SCOTUS precedent on the commerce clause.

Regardless, this will be one lengthy decision, and full of scathing dissent.

milcus on June 26, 2012 at 10:10 AM

The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

Not good enough. Obamacare will speed the U.S. along the road to insolvency. We need a different kind of health care reform – one that promotes people making their own health care decisions, and downplays the role of government.

If gov’t didn’t provide health care, then they would have less reason to try and control our eating, exercise, and other habits.

hawksruleva on June 26, 2012 at 10:25 AM

What if she is actually writing the majority opinion (to keep Obamacare)? Oh my.

matthew26 on June 26, 2012 at 10:32 AM

Ummm…

How do they know Roberts isnt writing the dissenting opinion and Ginsburg is busy writing the ruling.

This all seems highly speculative.

swamp_yankee on June 26, 2012 at 10:34 AM

Ummm…

How do they know Roberts isnt writing the dissenting opinion and Ginsburg is busy writing the ruling.

This all seems highly speculative.

swamp_yankee on June 26, 2012 at 10:34 AM | Delete

Quite simple, since all the Justices basically write the same amount of opinions, and Roberts has 1 less than everyone else, he is writing the majority opnion. This was almost always going to be the case. That means it is 5-4 for over-turning at least part of it, or 6-3 for keeping it at least part of it.

Writing the dissent does not count in terms of authorship.

If I were a betting man, I would say it is 5-4 to over-turn the mandate, and 6-3 for keeping the rest of the statute. Then Alito, Scalia, and Thomas will concur in part, and dissent in part, saying the rest is unworkable and too astray of the commerce clause. And the liberals will also concur in part and dissent in part, saying that the individual mandate is constitutional as well.

milcus on June 26, 2012 at 10:44 AM

I can tell you two things that are almost certain.

Obamacare’s mandate will get struck down.

The US will experience another recession before the next election. It has already started to happen.

The only way, and i mean ONLY WAY, the Democrats could survive this is to try to connect the two events together. They will blame the coming recession on the repeal of Obamacare. It sounds ludicrous and stupid, but they control the media and the message for most Americans. If they wanted to broadcast this theme, they’d find some listeners.

Just watch it happen.

tflst5 on June 26, 2012 at 11:30 AM

can tell you two things that are almost certain.

Obamacare’s mandate will get struck down.

The US will experience another recession before the next election. It has already started to happen.

Yea, I am afraid a recession has already started. I so fear for my kids and what is going to be left for them. We are just a stroke, heart attack or fall away from losing our country completely.

How the heck did we get such Marxist judges in the SCOTUS like Ginsburg?

wsucoug on June 26, 2012 at 11:57 AM

I think the mandate goes down 6-3 – Sotomayer joining the majority. It’s not a tax, and their is no one to magically make it one.

5-4 ruling throwing the rest out – severability is the death nail – the clause was removed by the GOP – Sen whose name escapes me, because it does fund the bill. There is no way the justices will rule on provision by provision – they aren’t qualified to evalulate it plus to do so in the time required is pretty much impossible.

I could also see either a 5-4 ruling on Wickard tied into majority ruling (where it would not be a sweeping repudiation) or a minority opinion on Wickard with Alito, Thomas and Scalia arguing for a return to the 10th Amendment.

I don’t beleive the court is ready to reign in the welfare state – the congress will have to decide to do it – or be forced into it after default raises its ugly head.

I also see a 6-3 to 9-0 ruling on upholding the medicaid expansion. The states accepted the devil and will have to have the legisltative process save them. The beauty of the case, for all of our concern over Obamacare is that the medicaid provisions actually will bankrupt every state in the union within 10-15 years.

Zomcon JEM on June 26, 2012 at 11:59 AM

You’re quoting Politico?

Haunches on June 26, 2012 at 12:08 PM

Seems to me, Ginsberg simply needs some extra time to interpret the South African Constitution.

Afterseven on June 26, 2012 at 12:13 PM

Ginsberg = Liberal Rubber Stamp. If she ever had an objective thought in her life, she couldn’t comprehend it. How does someone who hates this country on the level she does, be elevated to the position of being able to negatively effect laws that shape our daily lives? Mind boggling.

volsense on June 26, 2012 at 12:18 PM

Well, Ginsberg said that she liked Roe v. Wade because it helped to get rid of the “undesirables”, so she definitely would be go-go death panels.

Haunches on June 26, 2012 at 12:42 PM

Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

That’s awesome. Because then the Individual Mandate is unconstitutional, but we still need to elect Romney and a Republican House and Senate to toss out the rest of ObamaCare.

Legally? They should kill the whole thing. Politically? THat’s a win for Republicans.

Greg Q on June 26, 2012 at 1:32 PM

Geez. I thought plurality opinions died with the Warren Court. Sigh.

UnrepentantCurmudgeon on June 26, 2012 at 2:00 PM

Yea, I am afraid a recession has already started. I so fear for my kids and what is going to be left for them. We are just a stroke, heart attack or fall away from losing our country completely.

How the heck did we get such Marxist judges in the SCOTUS like Ginsburg?

wsucoug on June 26, 2012 at 11:57 AM | Delete

Sometimes I am amazed at the gloom and doom people and all this lost… What you would you do people if you were living during FDR who passed social security or LBJ who passed medicare… During FDR times that highest tax bracket was at 90% rate…

mnjg on June 26, 2012 at 4:28 PM

The best reasoning for RBG is because Breyer’s opinions are nonsensical, Sotomayor is junior and from the current ‘admin’, Kagan is way too close, possibly with involvement, and even newer than Sotomayor.

That only leaves the pro-woman-regardlessofanylimit, cause gosh darnit human rights rule and freebies are human rights

John Kettlewell on June 26, 2012 at 5:33 PM

H*ll no striking only the mandate isn’t good enough! That would still leave our disabled child at the mercy of the rationing board unless my husband and I could come up with enough cash to pay a doctor to treat her. We would spend our last penny to get care for our child but we are not rich and it probably wouldn’t take too many years to exhaust our savings bonds (that are supposed to pay for college), our IRAs and our regular savings. My family and I want to see the whole law struck down.

sherrimae on June 26, 2012 at 11:30 PM

Yea, I am afraid a recession has already started. I so fear for my kids and what is going to be left for them. We are just a stroke, heart attack or fall away from losing our country completely.

How the heck did we get such Marxist judges in the SCOTUS like Ginsburg?

wsucoug on June 26, 2012 at 11:57 AM | Delete

Sometimes I am amazed at the gloom and doom people and all this lost… What you would you do people if you were living during FDR who passed social security or LBJ who passed medicare… During FDR times that highest tax bracket was at 90% rate…

mnjg on June 26, 2012 at 4:28 PM

Feel free to fiddle while Rome burns.

wsucoug on June 27, 2012 at 12:17 AM

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