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So on Wednesday, I was able to attend the Supreme Court oral arguments in person.  People told me it would be impossible to do since there were people who had begun camping out in front of the Court in the weekend prior to arguments and there was limited seating.  I tried to get in on Tuesday but had failed.  Wednesday though I was determined to make it in.  It required waking up extraordinarily early, waiting in line for hours in the freezing cold, and just a little bit of luck/a complete random act of kindness from a complete stranger but I got in.  I can't express in words just my elation at getting one of those little yellow admission tickets....kinda like receiving the magic Willy Wonka tickets I would think.  

I had not been to an oral argument before at the Supreme Court.  I figured that if there was any argument to attend, it would be this one.  It's not only historic but I will be personally affected by the results.  Even though I'm young, healthy, in good physical shape, and can afford to purchase good health insurance, I can't get it.  Why not?  I technically have "pre-existing conditions."  So in order to get basic health insurance, I enrolled on one of those high risk open enrollment plans that was created by Obamacare (health insurance companies can no longer discriminate against those with pre-existing conditions who are under 18 but still can against those who are older than 18 and these plans have been created as a stop gap in the meantime).  

I think that there has been some excellent legal analysis here on the constitutionality of  Obamacare and I don't need to repeat too much of what has already been said.  To sum up:  I agree with those who say that this act is 100% constitutional and that to overturn it would be an act of extreme judicial activism by the Court which would not only have to make up entirely new law but abandon 7-8 decades of precedent.  I don't share the same level of pessism by those in the news media and I also agree with those who overemphasize oral arguments.  I think the Solicitor General, Donald Verilli, did a fine job during oral arguments (his assistant who argued on Wednesday morning, I was less impressed with).  I was also impressed with the third lawyer who argued that if the mandate was unconstitutional, the rest of the Act should be saved.  He was impressive all around.  My two cents would be that if there is a 5-4 decision to uphold Obamacare in its entirety, it's probably John Roberts (not Anthony Kennedy).  Also, I think the Court, if it does invalidate the indidivual mandate (something I'm not entirely sure they'll do), is likely to keep most of the rest of the Act.

But I write this diary to express some of my disappointments with the Court and the behavior of some of the Justices during oral argument.  

So what bothered me?  Well a number of things.

1.  Long and Drawn-Out Discussions of Public Policy

At Wednesday morning's oral argument, perhaps the thing that troubled me the most were the long discussions regarding public policy engaged in by some of the Court's Justices.  Several Conservative Justices (Samuel Alito, Antonin Scalia, and Anthony Kennedy) engaged in long winded discussions of public policy and the impact severing just the indidivual mandate would have on the Act.  Samuel Alito cited all sorts of economic figures to discuss why the Act would be flawed without the individual mandate.  Nino Scalia spent time opining on whether the bill would have passed without certain provisions designed to attract votes.  Anthony Kennedy spent time debating whether it would be sustainable to take out the individual mandate but leave the rest of the act given the a matter of public policy.  

Now as a baby lawyer and a Liberal, I shouldn't be the one having to point out that it is not the job of the Supreme Court (or any court for that matter) to make public policy.  At the very least, the Court should never make public policy decisions in contradiction to what the legislature has already clearly spoken on.  Courts aren't there to be an alternative legislature, striking down laws that they don't like or laws they think they could have written better.  They're there to decide questions of law.  

Obamacare may be good policy or it may be bad policy.  There may be better alternatives to enact and there may be valid discussion on that.  However, that's a job for Congress, NOT the Supreme Court.  Why's that?  It runs counter to our notions of democracy and representative self-government.  Judges are unelected, we can't change them out if we don't like them, we can't lobby them on cases like we can lobby the President and our legislators.  

What I find particularly galling about this is that the Justices most actively engaging in these long public policy discussions are the Conservatives, the same Justices who spend a great deal of their time lecturing against "judicial activism" and calling for "judicial restraint."  They have exposed themselves as complete and utter hypocrites.  

2.  The Compassion and Concern for Health Insurance Companies (and lack thereof for the millions who will lose health insurance and their healthcare if the Act is invalidated)

This relates to the issue of long and drawn out public policy discussions but I found it particularly appalling to see the extreme compassion of the Justices for the plight of health insurance companies who would face monetary losses without the individual mandate.  The concern and sympathy for them by several of the Justices was misguided at best.  

But worse still was the fact that not one single Justice, not one, brought up the fact that if the Court were to strike down this law, that millions of people (at a minimum) who now have health insurance would find themselves without health insurance.  In many cases that would mean going from getting neccessary healthcare to receiving none at all.  When the government's lawyer attempted to bring this up, John Roberts shut down the argument.  Now, perhaps public policy shouldn't be discussed.  But if the Justices are going to engage in public policy discussions and express sympathy, concern, and compassion...perhaps they ought to consider doing it for millions of the most vulnerable in society in addition to the large private health insurance companies.  

What gets me is the realization that all 9 Justices receive health insurance as part of their salary that provides the finest medical care in the world.  They get it regardless of pre-existing conditions and they get it even if they otherwise couldn't afford it.  They also get it for life even after they retire.  All at taxpayer expense (which is fine).  Yet, the Court might act to take away health insurance from millions of others and those Justices who seemed most ready to do so seem oblivious to that fact.  There's something wrong with that.  

3.  Justice Alito's Circular Arguments

Having read the transcript of Tuesday's arguments on the constitutionality of the individual mandate and seen part of it in person (for 5 minutes anyway), I would say the strongest vote against the mandate is Samuel Alito.  On Wednesday, he was the strongest advocate for bringing down the entire law (he's plotting strategy as well...he asked Paul Clement, the lawyer for those challenging the law, what his backup plan was if the Court wasn't willing to tear down the entire thing).  

Now here's the thing.  The argument from those challenging the law and agreed with by Justice Alito (and presumably Clarence Thomas as well as at least given serious consideration by Scalia and Kennedy) is that the requirement that everyone purchase health insurance is so tangential and so unrelated to the scope of interstate commerce, it's outside of Congress's authority to regulate.  The argument advanced is that this is somehow a regulation to improve health, thus the government could force people to buy gym memberships or broccolli if they could force one to buy health insurance.  Hence, Scalia was the one who brought up the broccoli argument (something that Ronald Reagan's Conservative Solicitor General Charles Fried described as "beneath contempt").  

On Wednesday though, in their attempts to get the entire law thrown out, the lawyers arguing before the Court as well as Alito, Kennedy, and Scalia pointed out the debilitating effect removing the mandate would have.  According to Alito, the economist's briefs he read showed that the new regulations on health insurance companies would cost them $700 billion dollars.  To make up for that, $350 billion would come from government subsidies and the other $350 billion would come from new customers under the individual mandate.  

My response to this is "um.....hello?"  If that's the case, then the individual mandate is not some tangential provision that attempts to improve healthcare (which supposedly affects the economy), the regulation is directly related to commerce.  This is something the Court has clearly spoken on.  

4.  Scalia's Commentary on Having to Read the 2700 pages of the Bill

Nino Scalia is a man who definitely loves the sound of his own voice.  That was clearly evident at Wednesday morning's oral argument.  He got a big laugh line when he asked Paul Clement what happenned to the 8th Amendment if the Court was forced to read all 2700 pages (or force it off on their law clerks) of the law.  

It's a small point but I didn't find much humor in it.  If the Court is going to invalidate the individual mandate, then it ought to do its job and figure out what stays and what goes in the law.  If that means doing a lot of reading, so be it.  That's what they get paid for.  They shouldn't complain and act as if it's a pain to do their jobs (there are a LOT of people who would love to have their jobs).  

5.  The Commentary on Vote Counting on the Hill

When Paul Clement argued that if the entire law were to be thrown out, the constitutional parts could all be easily re-enacted by Congress, the audience in the courtroom literally burst out into laughter.  But it wasn't met with laughter by the bench.  Both Scalia and Kennedy seemed to delve into Congressional politics, bringing up the Cornhusker Kickback and the need for 60 votes in the Senate to pass legislation.  

I found it entirely inappropriate.  Yes, we know about sausage making on the Hill.  That's not something the Court should ever consider in constitutional analysis and I'm hardpressed to think of a case where the Supreme Court has in the past.  Elena Kagan (god bless her) raised this point very effectively.  Still, it surprises me that some of the Justices felt free to discuss the politics of passing legislation.  And that the junior most Justice on the Court was the one who had to remind them that this isn't something the Court does.  

My Final Thoughts

Not all of the Justices bothered me of course.  I thought Sonia Sotomayor, in particular, was brilliant and impressive.  She was aggressive in her questioning but respectful.  She knew her case law and she honed in on the weaknesses of the challenger's arguments with precision.  Kagan was also impressive.  We need more Justices like the two of them.  I love Ruth Bader Ginsburg though she wasn't quite as good as Sotomayor and Kagan.  Still brilliant though in her questioning.  

I've got no idea how this is going to turn out.  The Justices voted on these cases yesterday at Conference (an event that only they are privy too).  My inkling is that the law will be upheld in its entirety, even if narrowly so.  But I honestly couldn't make a prediction with any confidence.  If they strike down this act, it will be an overtly political move and one based on their own personal preferences, not on any existing precedent.  If they uphold the law, they will be doing their judicial duty.  The fact that it's this close of a question is quite disturbing to me.  They risk becoming a political branch that loses its credibility as a result of this.  I hope that doesn't happen.  

I'm also hopeful that Obama will get the opportunity to appoint some new Justices during his second term and bring in some new blood.  


Who is your Favorite Supreme Court Justice (past and present)

5%7 votes
10%13 votes
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14%19 votes
6%9 votes
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0%0 votes
14%19 votes
8%11 votes
0%0 votes
10%14 votes
2%3 votes
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10%13 votes

| 129 votes | Vote | Results

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Comment Preferences

  •  Wow, thanks for this. I read it with intrigue. (16+ / 0-)

    Very nice diary.

    "If you don't sin, then Jesus died for nothing!" (on a sign at a Mardi Gras parade in New Orleans)

    by ranger995 on Sat Mar 31, 2012 at 08:31:30 PM PDT

  •  Thurgood Marshall. (25+ / 0-)

    I've always been moved by his place in the advancement of civil rights in this country. I was present when he received the Liberty Medal near the end of his life and it was a special experience to hear him speak.

    The founding fathers knew of the mutually corrupting influences of Church and state, wisely sending them to opposite corners.

    by emidesu on Sat Mar 31, 2012 at 08:41:41 PM PDT

  •  Lucky you (1+ / 0-)
    Recommended by:
    johnny wurster

    I would point out that the circular argument goes both ways. The Obama Administration's best argument IMHO is that no one disputes their power to ban discrimination based on pre-existing conditions and enforce community rating, but that those won't work without also including the individual mandate, and therefore the individual mandate is a sort of special, unique case that is limited, won't create a precedent, and "Necessary and Proper" the carrying out of the legitimate government function of regulating health insurance in general.

    But . . . if the Court doesn't buy that, and finds that the individual mandate is just a "bridge too far" for federal power under the Commerce Clause, then the Administration is going to have a difficult time prevailing on severability. They will have just briefed and argued extensively with respect to how critical it is to the whole regulatory framework, and now they want it to be severed? Furthermore, everyone knows that this is true in fact: ACA will collapse of its own weight without the mandate. The record is clear from every state that tried to ban pre-existing conditions discrimination and enforce community rating without an individual mandate.

    I think your critique of the delving into public policy issues is somewhat disingenuous. If they find the mandate unconstitutional, then they have to decide whether to throw out the whole law or not. There's no way to make that determination without getting involved in discussions about public policy and the legislative process.

    •  I don't find it a circular argument (1+ / 0-)
      Recommended by:

      It's a fact not disputed that 30 million uninsured people have a substantial impact on both the health insurance industry and the health care industry, because when they use health care, the rest of us have to pick up the tab.

      What's circular about that?

      •  There's nothing circular about that argument (0+ / 0-)

        and that's exactly the argument that I noted was the best one in favor of the constitutionality of ACA. The circularity comes into play if the court finds that the individual mandate is unconstitutional, but the Obama Administration wants them to also then find that it can be severed from the rest of the bill without much effect on the operation of the rest of the bill. It's hard to make both of those arguments at the same time.

        •  The Administration argues NON-severability (2+ / 0-)
          Recommended by:
          SoCalLiberal, elmo

          The Obama Admin position is that community rating and guaranteed issue should be stricken if the mandate is.

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Sun Apr 01, 2012 at 11:15:55 AM PDT

          [ Parent ]

          •  Is that right? (0+ / 0-)

            I didn't pick that up. They seem to be asking for a very tall order from the Court. They Court if it finds the mandate unconstitutional, must then also strike other provisions that are constitutional, but that are dependent on the mandate, but then not strike those provisions that are constitutional, but which would be fine without the mandate?

            •  Lyle Denniston's summary: (1+ / 0-)
              Recommended by:
              The Wednesday morning argument offered the Court three mutually exclusive options: strike down all of the Affordable Care Act along with the mandate (the challengers’ position), strike down only two core changes in the way the health insurance system works (the government position), and strike down nothing but the mandate (the position of a Court-appointed lawyer).  

              That the two core changes are guaranteed-issue and community-rating is clear elsewhere, e.g., the transcript.

              Am I right, or am I right? - The Singing Detective

              by Clem Yeobright on Sun Apr 01, 2012 at 11:59:26 AM PDT

              [ Parent ]

            •  There's a constitutional presumption (3+ / 0-)
              Recommended by:
              Clem Yeobright, elmo, Pilkington

              of severability in most statutes.  It's why the Violence Against Women's Act is still standing even though a provision of it was struck down as unconstitutional.  But the Court's line of jurisprudence isn't entirely clear on it.  And there are differing schools of thought on the role of the judiciary.  

              I thought the lawyer arguing the position of severing the mandate and only the mandate (I think his last name was Farr) was far more convincing than either Clement or Kneedler (who I thought was subpar....I don't want to judge cause' arguing before the Supreme Court is an extremely difficult thing to do but I found him lacking all around and when Sonia Sotomayor has to tell someone to move on from a position that's not going to sway the Court, you know there are problems.....Verilli was far better).  He received the best response from the Justices.  When he received tough questions, he seemed completely prepared for them and his answers (more importantly) seemed to mollify the Justices.  During his 30 minutes or so, he actually quieted the bench down quite a bit.  

              Check out my new blog:

              by SoCalLiberal on Sun Apr 01, 2012 at 12:11:55 PM PDT

              [ Parent ]

          •  Yeah (1+ / 0-)
            Recommended by:
            Clem Yeobright

            And it's a bizarre position for the Court to be in.  That's why they kept pushing the government's lawyer for a limiting principle of what the government should strike down and how.  

            The funny thing is, during the first part of the arguments, I felt that it was Clement who was getting tough questions.  Even Scalia seemed to be giving him a hard time.  Roberts was taking the same tone with him as Ginsburg, Breyer, Sotomayor, and Kagan.  And Kennedy seemed fairly unimpressed with his arguments.  Even Alito, who is by far the biggest Republican hack of the bunch admitted his position was getting nowhere by asking him for his "back up position."  But then the government's lawyer got up and spent the next half hour or so stumbling through his arguments.  At one point, Breyer put his hands on his head in this moment of frustration.  Sotomayor, who was brilliant throughout, had to intervene a couple of times to refocus the government's lawyer back onto relevant issues before the Court.  

            Check out my new blog:

            by SoCalLiberal on Sun Apr 01, 2012 at 12:19:21 PM PDT

            [ Parent ]

            •  Muddying the waters, SCL? (0+ / 0-)

              "Limiting principle" was Tuesday's discussion: If the mandate stands, what doesn't?

              I would characterize Wednesday's severability argument as being about "severability rules"; I don't think I've seen anyone but you use the term "limiting principle" regarding Wednesday, have you?

              People here are so confused about the debate, please - if I'm not just as confused as they are, of course - be precise. Am I wrong?

              Am I right, or am I right? - The Singing Detective

              by Clem Yeobright on Sun Apr 01, 2012 at 12:29:44 PM PDT

              [ Parent ]

              •  I'll try and explain (0+ / 0-)

                The discussion on Tuesday about "limiting principle" was different from the discussion of a "limiting principle" on Wednesday.  On Tuesday, there was discussion of what might limit the government in its regulation of the individual in interstate commerce.  

                On Wednesday, the discussion of the "limiting principle" revolved around a discussion of how the government should go about severing the law.  If one part of the law was unconstitutional, what other constitutional parts should be kept and how.  If the government was saying certain other parts shouldn't be kept, what was the rationale?  What principle would be limiting the Court?  Were they to strike down only that was related to the individual mandate?  Only that affected by the mandate?  What was affected?  What was related?  How does the Court figure it out?  That was why Breyer suggested the two parties getting together to figure it out and why Scalia seems to be coming up with a rationale for getting rid of everything.  

                My best sense of it is that if the Court gets rid of the mandate, they're going to keep everything else.  They don't have a test for figuring out what to strike out of the bill and what not to and they don't want to throw everything into the trash.  

                Check out my new blog:

                by SoCalLiberal on Sun Apr 01, 2012 at 07:19:02 PM PDT

                [ Parent ]

                •  Sorry. I'll type more slowly. (0+ / 0-)

                  The term 'limiting principle' was used 17 times on Tuesday; it was not used at all on Wednesday. In fact, 'principle' was not used even once on Wednesday.

                  People here are often like parakeets with bright shiny objects, so it behooves those who understand the differences to avoid using terms that have acquired (if just for the moment) a particular application in referring to cases to which - although semantically correct - they don't immediately apply in this 'vernacular'.

                  I can find in the transcript no term for what was being sought on Wednesday that stands out, and I have therefore suggested that the Court sought to identify the 'rules' it should apply to decide the severance question, as 'rule' has not (I think) any other reference in this week's sessions or in the ACA discussion.

                  Am I right, or am I right? - The Singing Detective

                  by Clem Yeobright on Sun Apr 01, 2012 at 09:21:36 PM PDT

                  [ Parent ]

    •  If The Mandate Is Ruled Unconstitutional... (0+ / 0-)

      The entire Bill will fail.  Didn't Breyer say the same thing as Scalia, that he had not read the entire Bill and wouldn't?

      How long would it take for 9 Justices to make a decision on each and every different part of a 2,700 page Bill?  Not possible to do, it will be All or Nothing.

      •  No, Breyer said something different (2+ / 0-)
        Recommended by:
        Clem Yeobright, FogCityJohn

        He's pointed out all that is in the bill.  He didn't say he hasn't read it or wouldn't read it.  He suggested a hypothetical where lawyers for both sides could get together and decide what's constitutional and what's not.  Hold a mediation if you will.  Whatever they disagree on could then go back to the Court.

        I dislike the characterization of Breyer as a Liberal, he's not.  He's a centrist.  I have a lot of respect for him, I think he's a good jurist.  But he's not a Liberal.  In fact, I wish that we could get a true Liberal appointed to the bench to replace one of the Conservatives and allow Breyer to become the key 5th swing vote because he'd be a far better swing justice.  

        Check out my new blog:

        by SoCalLiberal on Sun Apr 01, 2012 at 10:23:02 AM PDT

        [ Parent ]

  •  Scalia, Alito, & Thomas aren't jurists (6+ / 0-)

    they are teabagger thugs masquerading as judges.

  •  Scalia sez "let them die" His solution to HC (1+ / 0-)
    Recommended by:

    GENERAL VERRILLI: No. It's because you're going -- in the health care market, you're going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow -- that -- to which we've obligated ourselves so that people get health care.

    JUSTICE SCALIA: Well, don't obligate yourself to that. Why -- you know?

    GENERAL VERRILLI: Well, I can't imagine that that -- that the Commerce Clause would --would forbid Congress from taking into account this deeply embedded social norm.

    JUSTICE SCALIA: You -- you could do it.

  •  This was most excellent and informative. (11+ / 0-)

    It was shocking that the discussion veered off into policy while court was in session, I agree. This may be a deliberate strategy, however, and useful in shaping and mitigating public debate after the decision does come down.

    Again, thanks for the report. It brought a new reality to the proceeding for me.

    "Armaments, universal debt, planned obsolescence — the three pillars of Western prosperity." — Aldous Huxley

    by Pluto on Sat Mar 31, 2012 at 09:21:35 PM PDT

    •  Were you really just 18 years old (1+ / 0-)
      Recommended by:

      ...when you registered at Daily Kos?

      "Armaments, universal debt, planned obsolescence — the three pillars of Western prosperity." — Aldous Huxley

      by Pluto on Sat Mar 31, 2012 at 09:25:30 PM PDT

      [ Parent ]

    •  It was shocking (5+ / 0-)

      I mean, I actually do think that there are times when courts should be considering public policy.  I mean if you have an ambiguous statute that could be interpreted in more than one way, shouldn't a court make a public policy determination in picking which interpretation they go with (don't they anyway?).  When it comes to common law, I think courts can and do create public policy.  However, legislatures can change it if they don't like it.  That's why the Court has the freedom to do what it does.  

      But making a decision in place of what a legislature does is wholly inappropriate.  They may not do that in this case but the line of questioning suggests that they are taking this into consideration.  

      Check out my new blog:

      by SoCalLiberal on Sat Mar 31, 2012 at 09:56:28 PM PDT

      [ Parent ]

      •  Perhaps I should have said "political policy" (2+ / 0-)
        Recommended by:
        SoCalLiberal, elmo

        There are biased ideologies at work here that do not speak to policies based on benefitial outcomes for the people who created the government in the first place. Quite the contrary, in fact.

        "Armaments, universal debt, planned obsolescence — the three pillars of Western prosperity." — Aldous Huxley

        by Pluto on Sun Apr 01, 2012 at 02:43:49 AM PDT

        [ Parent ]

      •  Both Conservative and Liberal Justices... (0+ / 0-)

        get into Policy.

        Ginsburg told a group that decisions can be made based on Foreign laws.  That is clearly a "Policy" issue and not and interpretation of the Constitution issue.

        You brought up that millions of people would lose Health Insurance if the Bill was ruled unconstitutional.  Aren't you bringing "Policy" into the debate?  Why should the Justices be concerned about that point?  And if they should be concerned could they just rule that every citizen should be covered and the Federal Government should pick up the tab?

        You have a Utopian view of Supreme Court Justices.  In the Supreme Court, anything goes, they live by a different set of rules than you and I.  Only one thing has a direct impact on their behavior.  Is their behavior bad enough to cause the House and Senate to Impeach and Convict for their behavior?  That's it.  They are self policing.

        •  I disagree (2+ / 0-)
          Recommended by:
          Clem Yeobright, Pluto
          Ginsburg told a group that decisions can be made based on Foreign laws.  That is clearly a "Policy" issue and not and interpretation of the Constitution issue.
          That's not policy, that's law.  And the usage of foreign law is being used to guide interpretation of existing U.S. law.  
          You brought up that millions of people would lose Health Insurance if the Bill was ruled unconstitutional.  Aren't you bringing "Policy" into the debate?  Why should the Justices be concerned about that point?  And if they should be concerned could they just rule that every citizen should be covered and the Federal Government should pick up the tab?
          Did I say that?  I said that as long as they were going to bring policy into the debate, they might as well take time to consider the millions who will be thrown off of health insurance in addition to the impact on insurance companies.  

          Check out my new blog:

          by SoCalLiberal on Sun Apr 01, 2012 at 10:46:06 AM PDT

          [ Parent ]

  •  Thanks for Sharing! (8+ / 0-)

    I listened to Professor Akhil Amar, Yale Law, this morning on Up with Chris Hayes, and I thought that Professor Amar had a much better, more reasoned response for the Justices than Solicitor General Verelli.  Professor Amar tied the Interstate Commerce Clause to ACA and related the interference with Interstate Commerce with an individual seeking to improve employment status when a dependent had a pre-existing condition.

    Under that analysis, no "thinking" conservative could deny that the Interstate Commerce Clause is applicable to healthcare.

    Impeach Grover Norquist! Defeat a Republican!

    by NM Ray on Sat Mar 31, 2012 at 09:24:24 PM PDT

  •  Well, baby lawyer, you were there (7+ / 0-)

    when legal history was made, and I am jealous, but still so happy and proud of you!
    I welcome your impressions of what you heard.

    •  Thanks (8+ / 0-)

      I just got sworn in two weeks ago so I feel like I can call myself a baby lawyer.  

      I feel good that I got to be there for history.  Worth waiting hours in the freezing cold for.  You have to go through a whole process to get in.  This includes going through two different magnetometers, checking your personal iterms in a rented locker, and then (if you sit for the full oral argument) waiting in the room for over an hour and a half before arguments actually begin.  

      Check out my new blog:

      by SoCalLiberal on Sat Mar 31, 2012 at 09:36:34 PM PDT

      [ Parent ]

      •  wow. I had no idea. (4+ / 0-)

        But you did it.  You saw history.  And you were educated, informed, and being a lawyer, had a much better insight into it that those who have not endured the Socratic method for years!
        Go win a case, or argue an appeal, get published in Westlaw.. and then nobody will call you a baby lawyer again!  (Except me, as a term of endearment!)

        •  Have you ever watched People's Court (1+ / 0-)
          Recommended by:

          Marilyn Millian once referred to herself that way when discussing herself in the early to mid 1980's.  So I thought I'd use it to describe myself.  

          Check out my new blog:

          by SoCalLiberal on Sat Mar 31, 2012 at 10:05:30 PM PDT

          [ Parent ]

          •  All the lawyers in Tx (1+ / 0-)
            Recommended by:

            refer to new lawyers, young or old, as baby lawyers for their first few years of practice.
            I think I watched People's Court once.
            Are you going solo?  Going with a firm?
            I wish you all the best in your career.

            •  I don't know at the moment (1+ / 0-)
              Recommended by:
              Clem Yeobright

              I mean, it's a very difficult economic climate out there for most of us.  I come from a family of lawyers and part of my motivation in going through law school and then going through the hell that is studying for the Bar was to prove to myself that I could do what others in my family had done and that there wasn't anything out of my reach.  I'm not sure I ever really wanted to practice law, not in the long run anyway.  I also figured that law school would lead to employment, I'd work for a year or two and then I'd be able to get my MRED or go do something else that I would prefer to do with my life (I have a love and passion for politics).  So I'll have to see what my options are.  Being a member of the Bar helps a great deal.  

              One other thing too that's problematic is that during law school, I really did not enjoy much of the subject matter (or I did but it didn't truly captivate me) except for Constitutional Law.  For me, it's the legal equivalent of good fried chicken.  I absolutely love it.  You really can't go out there and practice Constitutional Law though (at least it's a limited sort of field).  

              As for the People's Court, I used to watch it a lot when I was in high school.  Right before I took the CA Bar though (the final Friday before the exam), I was burnt out.  Absolutely exhausted.  Physically and mentally.  My brain had turned to absolute mush.  But I still needed to study, at least somehow.  So what did I do?  I turned on People's Court and what I did was play a game of issue spotting.  Since the subject matter of what's brought up on the People's Court is tested on the Bar, I figured I could go through the initial cases and list the subject matter, the issues, and the applicable legal rules (as best I could remember).  

              Check out my new blog:

              by SoCalLiberal on Sun Apr 01, 2012 at 12:33:33 PM PDT

              [ Parent ]

              •  My sister-in-law was on PC twice (1+ / 0-)
                Recommended by:

                It's a scam. She played it successfully. It certainly goosed the small-claims filings in LA County!

                Am I right, or am I right? - The Singing Detective

                by Clem Yeobright on Sun Apr 01, 2012 at 12:43:14 PM PDT

                [ Parent ]

              •  Law certainly leads to (1+ / 0-)
                Recommended by:

                Washington politics, or local/state politics.  It is a great plus on your resume.
                The actual practice of law is not for everyone, but "issue spotting" is a training you cannot obtain anywhere else but law school. Socrates.  Who knew.
                Mush brain or not, you passed a very high bar.  I hear the Ca. and Ny. bar exams are really tough.
                You did it.
                Now, go find your inner Constitutional law freak that will pay the bills!!!!
                Try to clerk for an appeals court.
                Best of luck to you and yours.

      •  congrats and thanks (1+ / 0-)
        Recommended by:

        for getting sworn in, getting a ricket to witness history and wrriting this for us.

        America could have chosen to be the worlds doctor, or grocer. We choose instead to be her policeman. pity

        by cacamp on Sat Mar 31, 2012 at 10:26:11 PM PDT

        [ Parent ]

  •  It was really great to read something from someone (7+ / 0-)

    who was there and see the different perspective. Thanks. (And congratulations on scoring a ticket!)

  •  Hope that you are right (6+ / 0-)

    and the ACA is upheld in its entirety. It's hard for me to see past just how corrupt the four "conservative" justices who spoke during the three days of arguments seemed to be. It was off-the-charts that they seemed to be so receptive to the argument that the medicaid expansion should be struck down as "coercive" on the states because it is so generous to the states that they can't help but take the money even though it comes with conditions. Yet, it was somehow not coercive for Congress to enact laws requiring the states to enact strict seat-belt laws, to raise the drinking age to 21, and to enact right-on-red laws as a condition of receiving federal transportation funds.

    •  agreed, they're so corrupt I think they'll (0+ / 0-)

      strike down the law to please their masters and to make big bucks on the wingnut circuit.

      America could have chosen to be the worlds doctor, or grocer. We choose instead to be her policeman. pity

      by cacamp on Sat Mar 31, 2012 at 10:24:41 PM PDT

      [ Parent ]

  •  Thanks for the reporting. One meme (?) that (2+ / 0-)
    Recommended by:
    SoCalLiberal, Floande

    seems to be developing (on MSNBC, a least) is that, if the ACA is overturned (in whole or in part) because the Court finds it "unconstitutional",  the decision will be a black eye for Pres. Obama, the constitutional law professor.   With the implication that he must have been a lousy professor who didn't know his subject.  

    I'm sure that if the decision goes badly the conservatives will definitely run this up a flagpole to see if anyone salutes.  OTOH, with recent poll showing that 75% of those polled think that the Court will make a political decision, it is unclear to me if that idea will work.  

    And I think that poll result may possibly be what saves the Act.  There've been a number of articles saying the Court is conscious of its reputation and that it hasn't recovered from Bush v. Gore or Citizens United.  I sure hope that's the case.

    BTW, congrats on becoming a baby lawyer.  You sound as though you have a lot of potential.   Just remember that old saying about God knowing he's not a lawyer.  

    We must, indeed, all hang together, or assuredly we shall all hang separately. B. Franklin

    by Observerinvancouver on Sat Mar 31, 2012 at 10:24:46 PM PDT

    •  I don't think it'll mean much (3+ / 0-)
      Recommended by:
      Floande, elmo, Observerinvancouver

      Yes, the Republicans will get a rise out of it for a few days.  But I don't think it will really affect people either way.  At least not in the long run.  The jobs numbers that come out each month are far more important.  

      Obama's response to the ACA being held unconstitutional will be interesting.  A Jackson, Lincoln, or FDR response might be in order and he might decide to go after them.  If he does, I'd applaud him.  

      Check out my new blog:

      by SoCalLiberal on Sat Mar 31, 2012 at 11:55:46 PM PDT

      [ Parent ]

  •  IMHO--the right wing justices need to read this (4+ / 0-)

    diary before deciding anything. They need a little humanizing regarding their decisions and the effect said decisions have on flesh and blood human beings.

    They also need to see how petty and narrow minded (and almost stupid) they sound. Reading this would take them away from their protective legalese and into the real.

    Excellent job!

    "Southern nights have you ever felt a southern night?" Allen Toussaint ~~Remember the Gulf of Mexico~~

    by rubyr on Sat Mar 31, 2012 at 10:28:22 PM PDT

    •  Well I feel like they're humanizing allright (0+ / 0-)

      But they're humanizing the wrong folks (if that's indeed what they were doing).  I thought Conservatives were those who expressly didn't humanize and didn't think about people that they were affecting (at least in the legal/judicial sense).  But now it seems that Conservatism has morphed into actively harming others.  

      Check out my new blog:

      by SoCalLiberal on Sat Mar 31, 2012 at 11:45:12 PM PDT

      [ Parent ]

      •  Well, they are humanizing the people that (1+ / 0-)
        Recommended by:

        are part of massive corporate entities. That's for sure. Citizen's United proved that.  

        "Southern nights have you ever felt a southern night?" Allen Toussaint ~~Remember the Gulf of Mexico~~

        by rubyr on Sun Apr 01, 2012 at 09:55:09 AM PDT

        [ Parent ]

        •  Even Citizens United looks reasonable (0+ / 0-)

          I don't agree with the holding but at least it could be said that the justices based their opinion on an interpretation of a constitutional issue (and perhaps didn't take public policy into consideration when doing so).  

          Check out my new blog:

          by SoCalLiberal on Sun Apr 01, 2012 at 10:49:06 AM PDT

          [ Parent ]

    •  Fastest way (1+ / 0-)
      Recommended by:

      Take away their government-provided health care and make them dependent on the outcome of their own judgment. If they're going to dig into policy as diarist notes, why doesn't the existing generous coverage of the entire three branches have standing? Maybe if their lives were in the balance they might produce a little more grace and empathy.

      •  Oh, yeah, but that will never happen. Seems they (1+ / 0-)
        Recommended by:

        feel they "deserve" their health care but not everyone does, apparently.

        "Southern nights have you ever felt a southern night?" Allen Toussaint ~~Remember the Gulf of Mexico~~

        by rubyr on Sun Apr 01, 2012 at 09:56:44 AM PDT

        [ Parent ]

  •  Had to vote for Brandeis (6+ / 0-)

    although I guess you meant Louis Brandeis?

    Here's why:
    In 1916, President Woodrow Wilson nominated Brandeis to become a member of the Supreme Court. However, his nomination was bitterly contested, partly because, as Justice William O. Douglas wrote, "Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible. . . [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court." He was eventually confirmed by the Senate by a vote of 47 to 22 on June 1, 1916, and became one of the most famous and influential figures ever to serve on the high court. His opinions were, according to legal scholars, some of the "greatest defenses" of freedom of speech and the right to privacy ever written by a member of the Supreme Court.

    Follow that link above and read the depth and breadth of what Brandeis brought to the nation, during his life and long, long afterward.

    Some of his accomplishments echo down the years to today, including some of our most important more modern SCOTUS decisions, like Loving v Virginia and Roe v Wade.

    A man for the ages.

    * * *
    I like paying taxes...with them, I buy Civilization
    -- SCOTUS Justice O.W. Holmes Jr.
    * * *
    "A Better World is Possible"
    -- #Occupy

    by Angie in WA State on Sat Mar 31, 2012 at 11:08:50 PM PDT

    •  Omg (2+ / 0-)

      I meant Louis Brandeis.  And now it's too late to go back and edit the poll.  Stupid me.  

      What's funny to think about is that Brandeis's defenses of the First Amendment seem conservative and tame by today's standards.  

      I think James McReynolds used to say very nasty and anti-semetic things to him on a regular basis.  

      Check out my new blog:

      by SoCalLiberal on Sat Mar 31, 2012 at 11:36:09 PM PDT

      [ Parent ]

      •  Just reading over his accomplishments tonight (2+ / 0-)
        Recommended by:
        lastlegslaststand, SoCalLiberal

        made me recall the episode of Real Time with Bill Maher from early in last year's season, when he had Michael Moore on.

        Remember that image of the CEO of Montgomery Ward on the chair carried by two men in military uniform, from the WWII era? It was on DKos for a while in a number of diaries.

        Anyway, in that Real Time episode, Moore, quite loudly and in a "righteous ranting" sort of way exclaimed, "That's the kind of Democratic we used to have for President!"

        Meaning a President who would arrest and cart out of his office on his chair a president of a company who defied the legal orders of the US Government and it's President.

        Gads, what kind of men this country produces from time to time, it's astonishing, isn't it, the good they can do?


        * * *
        I like paying taxes...with them, I buy Civilization
        -- SCOTUS Justice O.W. Holmes Jr.
        * * *
        "A Better World is Possible"
        -- #Occupy

        by Angie in WA State on Sun Apr 01, 2012 at 12:09:22 AM PDT

        [ Parent ]

  •  That was an excellent diary. (2+ / 0-)
    Recommended by:
    SoCalLiberal, ranger995

    I think the conservatives won't be able to help themselves. They'll find the individual mandate unconstitutional and in so doing expose themselves for the antisocial ideologues they are. But I'll be glad if I'm wrong. Scalia-blecch!

    48forEastAfrica - Donate to Oxfam> "It is better to light a candle than to curse the darkness." Edna St.V. Millay

    by slouching on Sat Mar 31, 2012 at 11:50:50 PM PDT

  •  You were one lucky person to have been there!... (1+ / 0-)
    Recommended by:

    Tipped and Rec'd for your analysis, and commentary on the proceedings.

    “The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane.” — Marcus Aurelius

    by LamontCranston on Sun Apr 01, 2012 at 06:46:39 AM PDT

  •  Robert Jackson (2+ / 0-)
    Recommended by:
    elmo, SoCalLiberal

    who may have been the finest writer of opinions ever, or at worst second to John Marshall. As O'Connor once pointed out in a Q&A at an event where she was receiving an award, he was also the last Justice to read for the law rather than attend law school, and she wondered if that was related.

    I don't always agree with Jackson on everything.   But I would suggest one simply read three of his opinions

    1.   His dissent in Korematsu, which think stands with that of the first Justice Harlan in Plessy as the pinnacle of how to write a dissent

    2.  His concurrence in Youngstown, where he laid out a 3-part test for the Courts to judge between the political branches, a test that has since become the basic standard used

    3.  Most of all his opinion for the Court in Barnette, where (a) the Court reversed itself from Gobitis only three years earlier, and (b) he offered as strong a standard of protection of dissenting and unpopular views against the tyranny of a majority, even if advocating on patriotic grounds, as one can find.

    I am going to offer several quotes from that opinion:

    It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony, or whether it will be acceptable if they simulate assent by words without belief, and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here, the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.
    The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
    Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity.

    As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

    It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

    To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
    And perhaps the most famous words from this opinion, and as clearly written as anything by any Justice:  
    If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
    I think the words just quoted should be required to be learned by all who would hold public office - too many still think they are entitled to impose by law or regulation or pressure of other kinds their narrow views of what is acceptable, to impose requirements of patriotic (as they define it) behavior.  

    If for nothing other than this opinion, Jackson would be my favorite Justice.

    And yes, I know that Rehnquist clerked under him.  That Rehnquist did not learn from Jackson's largeness of spirit is more a judgment on the younger man.

    "what the best and wisest parent wants for his child is what we should want for all the children of the community" - John Dewey

    by teacherken on Sun Apr 01, 2012 at 06:53:15 AM PDT

    •  Thanks for including that quote (0+ / 0-)

      that's one of my favorites.

      But as I reflect this morning, I'm very much troubled by the thought that there may be no more "fixed stars" in our constitutional constellation. Five conservatives on the Supreme Court seem poised to radically alter the constitutional landscape. Citizens United may only have been the beginning. It's not only ACA, but affirmative action and the Voting Rights Act are also on their chopping block.
      And the discussion of the Medicaid expansion in the recent oral arguments chilled my blood! I would not want this court to take a look at the constitutionality of Medicare or Social Security in their present frame of mind!

      When you think of the constitutional rights that hang on a single vote, it is even more frightening to contemplate that a Republican president might be able to replace Ruth Bader Ginsburg with another Scalia or Alito.

    •  To be perfectly honest (1+ / 0-)
      Recommended by:
      Clem Yeobright

      Jackson is a little too conservative for my tastes.  But I see the admiration for him, especially in his Korematsu dissent.  It's one reason I'm a fan of Frank Murphy.  He wasn't the greatest legal intellectual to ever sit on the Court but the man understood the role of a court to do justice.  

      Rehnquist was the one who wrote a memo urging Jackson to dissent in Brown v. Board of Education.  

      Check out my new blog:

      by SoCalLiberal on Sun Apr 01, 2012 at 12:22:18 PM PDT

      [ Parent ]

    •  I forgot that he wrote Barnette (1+ / 0-)
      Recommended by:
      Clem Yeobright

      I always think of that as a Douglas/Black opinion.  They may have written concurrences but technically they didn't author the majority opinion.  It's one of the better opinions ever written on that Court.  

      Check out my new blog:

      by SoCalLiberal on Sun Apr 01, 2012 at 12:23:31 PM PDT

      [ Parent ]

      •  Concurrence and explanation (1+ / 0-)
        Recommended by:

        since they had joined Frankfurter's opinion in the 8-1 vote on Gobitis, on which only Stone as associate justice had dissented.

        It is one case where the logical person to write the opinion might not have been the best choice - Stone picking Jackson resulted in what is rightly considered one of the greatest opinions ever written.

        Similarly with Brown -  there would have been a certain poetic justice to letting the 2nd John Marshall Harlan write the opinion, given the dissent his grandfather had offered in Plessy.  

        "what the best and wisest parent wants for his child is what we should want for all the children of the community" - John Dewey

        by teacherken on Sun Apr 01, 2012 at 04:22:21 PM PDT

        [ Parent ]

  •  conservatives used to despise what they called (1+ / 0-)
    Recommended by:

    "judicial activism"...but now...they seem to love it, now that corrupt, radical, right-wing extremists are able to to cram their childish opinions down the throats of the American public, regardless of the oaths that they took to uphold the law in an objective way.

    Five of the current justices are nothing less than puppets of filthy rich billionaires and corporations, willingly doing the bidding of those with lots of money (probably because it helps their personal financial portfolios).

    The Supreme Court has turned into a parody of the entire American judicial system and become nothing less than a kangaroo court of last resort.

    If only America had a civilized judicial system, where there were ethical standards that applied to these bozos.

  •  They're just doing the severability analysis (1+ / 0-)
    Recommended by:
    Clem Yeobright
    Now as a baby lawyer and a Liberal, I shouldn't be the one having to point out that it is not the job of the Supreme Court (or any court for that matter) to make public policy.
    Since there was no severability clause, the court has to determine whether the unconstitutional provision is a conceptually necessary provision to the functioning of the law and they have to determine whether, as a political matter, it would've passed but for that section.
  •  Scalia's lack of logic (1+ / 0-)
    Recommended by:

    I appreciate the first person perspective. I am not a lawyer and do not follow the courts beyond what you read in papers, a newsmagazine and what little you see on TV news. That said, if you think Kennedy will vote against the ACA, then it will be overturned 5-4. There is no reason for me to believe that conservatives on this court will show any restraint so I assumed that Alito, Roberts, Scalia and Thomas were automatic votes. This court is what you suggested at the beginning - a vehicle to get the "public policy" they want.

    What I was particularly appalled by was Scalia's bad analogy suggesting that if the individual mandate was upheld it was a slippery slope that allowed the government to mandate that citizens purchase broccoli and health club memberships. I am sorry to say this, but I find his questions beneath the level of smart third grader, sophomoric would be a compliment. I was lead to believe this man was some sort of legal genius and yet the first questions I ever heard him ask sounded like the kind of arguments that would get you laughed out of a high school civics class...and he is on the Supreme Court.... Admittedly, I have never read one of his decisions so he may be "brilliant" in his written opinions, but I am quite skeptical that such a thing is possible based on his obvious verbal deficiencies. Perhaps the Senate should think hard about inflicting these "geniuses" on the American public.
     It also leads credence to the idea that he was nominated and put on the court for one reason - to be a partisan right wing ideologue that would always support the Republican position on important issues regardless of its constitutionality.

    •  I don't know if Kennedy votes (1+ / 0-)
      Recommended by:

      against it or for it.  I think Roberts is a stronger leaning vote to uphold than he is (although I would not say Roberts is a lock and might very well vote to say it is unconstitutional).  

      I have a high faith in our judiciary.  Even as someone who doesn't want to really practice law, I still believe in the rule of law and I still believe in the judiciary to act as it should.  Even when they issue opinions I don't like.  It's going to be tested though come June.  

      Check out my new blog:

      by SoCalLiberal on Sun Apr 01, 2012 at 07:49:27 PM PDT

      [ Parent ]

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