Tuesday, March 27, 2012

Today at the High Court, the Mandate Looked Fragile

The atmosphere at the Supreme Court this morning reminded me of the Kentucky Derby, only it took tow hours rather than two minutes. The Justices even drank (water, presumably) out of silver Julep cups!

Everyone was so excited to be there, regardless of which side they favored. The crowd outside was festive - even played the Black Eyed Peas.

Many of those who camped out to get tickets changed into court attire in the Supreme Court restrooms. A few others, including a bunch of Georgetown Law students, looked like they'd slept on the sidewalk but still relished their chance to see history.

There were many Senators, including Senate Republican Leader Mitch McConnell. Sen. John Kerry walked in and took a center seat just before the gavel pounded, the better to make sure we all knew he had arrived.

The caliber of advocacy varied. Paul Clement, for the 26 attorneys general, was outstanding. The Solicitor General, for the Obama administration, had a very rough start. He was visibly nervous and could never provide a limiting principle when pressed by the conservative justices.

After the first hour, it was clear that the individual mandate was in trouble.

Much has been said about Justice Kennedy as the swing vote. His questions and comments today suggested that unless he changes his mind in conference, he will vote to strike down the statute. That is perfectly consistent with his jurisprudence.

Before the argument, I was more worried about Justice Scalia, who takes a broad view of the necessary and proper clause. What a relief, therefore, to see Justice Scalia pounce on the S.G. from the get to.

The liberal justices tried their hardest to help out the government. The effort was neither pretty nor effective.

Justice Thomas asked no questions, but that his his style. He did, at one point when Wickard was mentioned, reach for an amicus brief and start paging through it. Maybe Sen Paul's amicus brief?

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