What's going to happen during 3 days of arguments on health care?
By Jeffrey Rosen, PROFESSOR OF LAW Published: March 23
Starting Monday, the Supreme Court has scheduled six hours of oral
arguments over three days to consider the constitutionality of
health-care reform, the most time given to a case in more than 45
years. We're certainly in for a historic event — but it might be an
entertaining one, too.
Oral arguments are always theatrical: The lawyers stand only a few
feet from the justices, who loom above them on a curved bench, and
they are barraged with so many questions that they often have trouble
completing a sentence. The hearings are also an opportunity for the
traditionally secretive Supreme Court to cut loose. In fact, the
Roberts court is known as a "hot bench" — not a reference to the
unusual sexiness of the justices but to the fact that eight of the
nine are unusually chatty during oral arguments (Justice Clarence
Thomas hasn't uttered a word since 2006). Even though the justices
rarely change their minds during oral arguments if they already have
strong views about a case, the hearings can clarify their thinking,
offer some lively give and take, and occasionally lead to humor.
So, will the oral arguments over health-care reform produce some
laughs? Here's a preview of what might transpire when the commerce
clause becomes a punch line.
Justice Antonin Scalia
According to a 2010 study in the Communication Law Review, Scalia is
the funniest member of the court, based on how many laughs the various
justices have elicited in the courtroom. But his wit sometimes has a
sharp edge. In 1988, when a lawyer fumbled for the answer to a
question, Scalia exclaimed, "When you find it, say 'Bingo!' "
Expect some zingers from Scalia in the health-care argument, perhaps
focused on the not-so-side-splitting subject of whether Congress has
the authority to require people to buy health insurance as part of its
power to regulate interstate commerce. Imagine, for example, the
following exchange:
Solicitor General Donald Verrilli: "In 2005, Justice Scalia, you held
that Congress has the power to prevent California from authorizing
people to grow marijuana for their own use. Surely, the decision not
to buy health insurance has a far greater impact on the economy."
Justice Scalia: "Depends on what part of California you're from."
Justice Stephen Breyer
Breyer's jokes often follow a long question identifying the hardest
issue in the case. He cares about legislative history and may focus on
a striking irony in the health-care law briefs: During the debate over
the legislation in Congress, Republicans insisted that the mandate to
buy health insurance should be considered a tax, and Democrats
countered that it shouldn't. The moment President Obama signed the
bill, though, both sides rushed to court to claim the opposite:
Democrats now insist that the mandate is absolutely a tax (and
therefore authorized by the taxing clause of the Constitution), and
Republicans are equally confident that it's not.
This debate is also relevant to whether the court has the power to
hear the case in the first place. If the mandate is a tax, according
to a 1867 law, litigants may have to wait until it goes into effect in
2014 to challenge it. If Breyer can get a laugh out of the "is it a
tax?" debate, he deserves to be promoted to funniest justice.
Chief Justice John Roberts
All eyes will be on Roberts to see whether he is inclined to interpret
the commerce clause of the Constitution as narrowly as he did in an
opinion that gave rise to one of his most memorable one-liners as an
appellate judge. In 2003, Roberts dissented from a ruling holding that
the federal government could use the Endangered Species Act to prevent
development on the habitat of the arroyo toad. He said the federal law
couldn't be applied to "a hapless toad that, for reasons of its own,
lives its entire life in California." Verrilli will try to convince
Roberts that the interstate economic effects of thousands of uninsured
sick people are far greater than those of the hapless toad, all the
while avoiding the word "toad."
As the crucial swing vote, Kennedy is most frequently flattered in
Supreme Court briefs. Some libertarians hope that he will strike down
the health-care mandate by invoking the same right to privacy that he
recognized when he reaffirmed Roe v. Wade in 1992. "At the heart of
liberty is the right to define one's own concept of existence, of
meaning, of the universe, and of the mystery of human life," Kennedy
wrote; Scalia later ridiculed this as the "sweet mystery of life"
passage. For Scalia and the other conservatives, Roe v. Wade is the
root of all constitutional evil. So if Paul Clement — who will argue
before the court for the health-care law's challengers — wants to
appeal to Kennedy without alienating the other conservatives, he may
try to murmur "sweet mystery" so quietly that only Kennedy can hear
it.
Justices Elena Kagan
and Sonia Sotomayor
These justices weren't yet on the court during the period covered by
the 2010 laughter study, but Kagan may have her eye on Scalia's
"funniest justice" title. She delivered the best one-liner of the
current Supreme Court term. Noting that the Federal Communications
Commission had interpreted its TV indecency policy to allow the
cursing in "Saving Private Ryan" and the nudity in "Schindler's List,"
she said: "It's like nobody can use dirty words or nudity except for
Steven Spielberg."
It will be hard to top the "Spielberg exception," but perhaps Kagan
can make something of the "Romney exception" — namely, the fact that
the same arguments about the economic effects of self-insurance that
Mitt Romney used to justify health-care reform in Massachusetts are
the ones that lawyers challenging the Affordable Care Act are
rejecting before the Supreme Court.
Sotomayor has made her mark in oral arguments and in recent separate
opinions by wondering aloud whether long-established Supreme Court
doctrines should be reexamined. During arguments in the Citizens
United case in 2009, she suggested looking again at the idea that
corporations are people. "There could be an argument made that that
was the court's error to start with," she said. In the health-care
argument, perhaps Sotomayor will press the government to explain why,
if corporations are people, they can't be forced to buy health
insurance, too.
Justices Ruth Bader
Ginsburg and Samuel Alito
Though not prone to punch lines, both are respected by lawyers for
asking the most technically difficult questions about a case.
Ginsburg, who once taught civil procedure, may be especially
interested in the complicated question of whether, if the court
strikes down the individual mandate, it should grant the government's
request to wait for future cases to decide whether other provisions
should be struck down as well.
Alito may be interested in the question of whether the expansion of
Medicaid unconstitutionally coerces the states by threatening them
with the loss of federal funds.
Justice Clarence Thomas
Thomas is considered the justice most likely to strike down
health-care reform. He alone among the current justices has signaled
willingness to overturn a landmark 1942 case in which the court
allowed Congress to regulate a farmer's cultivation of wheat in his
own back yard for his own use. Thomas also ranks as the least funny
justice, since he hasn't asked a question at an oral argument for the
past six years. (Still waters may run deep, but they don't run funny.)
Nevertheless, he has been known to speak when he cares passionately
about an issue, as he did in a 2002 argument about a Virginia law
banning cross-burning.
Lucky ticket-holders will be waiting eagerly to see whether Thomas can
restrain himself from leaning forward in his chair, pounding the bench
and exclaiming, as those challenging the law have asked: "If the
government can force you to buy health insurance, why can't it force
you to buy broccoli?"
Jeffrey Rosen is a law professor at George Washington University and
the legal affairs editor of the New Republic. He is also an editor of
"Constitution 3.0: Freedom and Technological Change."
http://www.washingtonpost.com/opinions/when-the-supreme-court-debates-health-care-get-ready-for-some-memorable-quotes/2012/03/21/gIQAeC4KWS_story.html
--
Together, we can change the world, one mind at a time.
Have a great day,
Tommy
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Together, we can change the world, one mind at a time.
Have a great day,
Tommy
--
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