Jim Geraghty
National Review
The midweek edition of the Morning Jolt has more on Obama’s potential future “flexibility” with Russia, the maddening pace of Mad Men, but most of it examines the big news out of yesterday:
Obamacare Had a Bad Day, Court’s Taking One Down, You Sing a Sad Song Just to Turn It Around
Behold the glory of low expectations. Most Obamacare opponents thought they had a pretty strong argument before the Supreme Court, and perhaps they might nudge likely swing vote Justice Anthony Kennedy in their direction a bit in Tuesday’s oral arguments.
Instead, by the end of the day, the perception was that at the very least, the individual mandate is starting to see the Supreme Court as a … well, death panel, I suppose you could say.
One of the first signals of Tuesday’s courtroom proceedings came from Tom Goldstein at SCOTUSBlog, just before noon: “Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble. It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli. On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions. Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden. At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality.”
Then CNN legal analyst Jeffrey Toobin went on the air and just dropped a rhetorical bomb:
CNN’s legal correspondent Jeffrey Toobin reports that the court’s conservative wing appeared skeptical of the Obama administration’s arguments in favor of the individual mandate provision of the Affordable Care Act.
“This was a train wreck for the Obama administration. This law looks like it’s going to be struck down,” Toobin said on CNN. “All of the predictions including mine that the justices would not have a problem with this law were wrong.”
“The only conservative justice who looked like he might uphold the law was Chief Justice Roberts who asked hard questions of both sides, all four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were — they did not meet with their success with their colleagues,” Toobin said.
How much did Toobin’s dramatic assessment change the conventional wisdom in Washington? Well, for starters, Senate Majority Leader Harry Reid felt the need to denounce him.
Reid reacted to CNN legal analyst Jeffrey Toobin’s remark that the healthcare law “looks like it’s going to be struck down” because of the tenor of the morning’s hearing.
“I’ve been in court a lot more than Jeffrey Toobin and I had arguments, federal, circuit, Supreme Court and hundreds of times before trial courts,” Reid said. “And the questions you get from the judges doesn’t mean that’s what’s going to wind up with the opinion.”
As we all know, a justice’s questions don’t necessarily indicate how they’ll vote on the final decision. But a couple points in Toobin’s favor in sorting this out: for starters, Toobin appears to like Obamacare and so this is an admission against his interest. Heck, he even declared that his previous assessment was wrong. (This is Washington. Nobody ever admits that they’re wrong!)
Second, I’m not so sure that Reid really has spent more time in a courtroom than Toobin. One would think that Senate work would preclude Reid from having much time for a private law practice, so Reid’s working life probably hasn’t focused primarily on work as a lawyer since, oh, at least 1986. Oh, wait, Reid served two terms in the House before that. Oh, wait, he was lieutenant governor from 1971 to 1974.
Third, analyzing the Supreme Court and legal matters is Toobin’s primary job, and so he’s putting a lot of his reputation on the line for offering such a resounding assessment. He’s been watching the Supreme Court for a lot of years, and for whatever beef we might have with Toobin’s ideology or legal philosophy, it’s not like he’s an amateur when it comes to analyzing how the justices think and what arguments are likely to sway them.
Fourth, you could simply not find an analyst who was in the room who thought the Solicitor General did a good job. This was the aspect that was so amazing about all this. Don Verrilli might be a really good lawyer and in fact, he has to be to rise to the level he has in his profession. It’s probably not fair, but he’s just become the Scott Norwood of Supreme Court arguments.
Fifth, for a guy who was on JournoList to tell liberals something they don’t want to hear… well, it must be pretty stark, I’d suspect.
Shortly after the Toobin report, you started seeing headlines like, “People Are Saying That Obama’s Healthcare Law Got Massacred At The Supreme Court Today”.
You do not often see the word ‘massacre’ in headlines about oral arguments before the Supremes.
At Hot Air, Allahpundit warns us to not count our chickens before they hatch:
If Kennedy can be persuaded that health care is sui generis, maybe he’ll split the baby by voting to uphold ObamaCare while emphasizing that a mandate for any other industry would be flatly unconstitutional. Not sure how that argument will work — listen to Roberts in the second clip below wonder why a cell-phone mandate would be any different than one for health insurance — but that’s the left’s best hope. Speaking of which, their explanation for today’s disaster appears to be not that they have a weak case on the merits but that Donald Verrilli’s performance was the legal equivalent of fumbling 10 times in the Super Bowl. In fairness to them, some of his exchanges with the Court are painful to read; the liberals on the bench had to bail him out repeatedly. But look: No case of this magnitude is being decided by oral arguments. If you think Breyer and Kagan and Sotomayor and Ginsburg were aggressive in arguing his case for him today, wait until they start going to work on Kennedy behind closed doors. Obama has four very good lawyers on his side in the Supreme Court’s chambers. Verrilli’s performance is unfortunate and terrible optics for O-Care’s superfans, but it’s not changing any votes.
UPDATE: This morning, the RNC unveils a video that almost makes one feel sorry for Verrilli:
https://www.youtube.com/watch?v=MXhLtb-NKY0
Read more: http://www.nationalreview.com/campaign-spot/294640/what-difference-day-makes-obamacare-jim-geraghty