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The normally supportive commentariat is not happy, for a variety of reasons:

  • My law school classmate Ruth Marcus, WaPo, Obama’s unsettling attack on the Supreme Court: “I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok.  Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question.  For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.”
  • Jeffrey Toobin, via TPM: “In my experience when the argument goes badly for one side, that side generally loses,” Toobin said. “That’s not obviously a 100 percent guarantee [but] my view of oral argument is based on watching oral arguments change at the Supreme Court over the years.”
  • Nan Aron: ““I do think the statements by some of the senators and the president are serving notice to the court that, frankly, if the court does overturn the law, in essence, the court will become a political football in the election,” Aron said.
  • Nate Silver: “However, the argument that the bill being struck down would actually help Mr. Obama seems to have little grounding in the evidence — nor, frankly, in common sense. Among the voters that are most critical to Mr. Obama’s re-election prospects, the Supreme Court is more popular than the health care bill. If the justices declare one of the president’s signature accomplishments to be unconstitutional, it would not be a boon to him.”


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jimzinsocal | April 3, 2012 at 2:20 pm

It goes too far I believe. The time to argue the case has gone by and I believe attempting to sway opinion before the case is decided is unusual if not illegal.

But further..Orin Kerr at Volkh notes:

“Is it strange that a President would discuss a pending Supreme Court case during a press conference? I haven’t checked the archives for past examples, but it does seem rather unusual. At the same time, it’s also unusual for the Supreme Court to hold six hours of oral argument to consider striking down the signature legislative achievement of a sitting president who is a former professor of constitutional law. As David Bernstein once noted, Obama has “thought a lot about constitutional history.” Presumably he has strong views about the mandate litigation. I don’t know if it was politically wise to make those comments, but I suppose I can understand why a former con law professor would find it hard to pass up the opportunity.”

    9thDistrictNeighbor in reply to jimzinsocal. | April 3, 2012 at 3:01 pm

    “Is it strange that a President would discuss a pending Supreme Court case during a press conference? I haven’t checked the archives for past examples, but it does seem rather unusual.”

    Not for a guy who attempts to smear the SCOTUS members at his SOTU speech….

    Browndog in reply to jimzinsocal. | April 3, 2012 at 3:13 pm

    Good of you to quote Kerr.

    Got anything from..say..a Rhodes Scholar?

    Because if you’re going to post a Kerr quote on Legal Insurrection, you may as well round it off with a Rachael Maddow quote.

    …..just sayin’

quiksilverz24 | April 3, 2012 at 2:26 pm

I’m personally a fan of what Rush had to say today. Someone leaked to the WH that the preliminary vote did not go Obama’s way. Being the narcicist he is, he took the first opportunity to blast the court and attempt to sway the opinion in the final vote the opposite way. I wouldn’t be surprised to learn that the final 5-4 vote ruling the law unconstitutional was originally 8-1 or 7-2, but Kagan and Sotomeyer had to change to get in line with the administration.

    persecutor in reply to quiksilverz24. | April 3, 2012 at 2:40 pm

    My bet is Kagan. She helped write the argument for the Solicitor General before she left.

      Ragspierre in reply to persecutor. | April 3, 2012 at 2:50 pm

      IFFFF a leak occurred, it would likely be from a clerk. Justices have too much to risk.

      Plus, this is very early days. There will be a lot of writin’ and citin’ that could change some minds.

        Browndog in reply to Ragspierre. | April 3, 2012 at 4:16 pm

        Don’t forget, Kagan and Sibelius were seen at the same restaurant the night of opening arguments-

        If I may invoke the theme of the thread-

        It is “unusual and unsettling”….to say the least

        persecutor in reply to Ragspierre. | April 3, 2012 at 5:14 pm

        Risk what? Lifetime appointment and a simple denial that she spoke to anyone–unless you can prove it, end of story. You and I may possess and practice proper ethics, but she wouldn’t be the first attorney or judge to violate the Code.

        And I truly believe that Obama’s commentary was spoken to keep someone else on the Reservation.

          Ragspierre in reply to persecutor. | April 3, 2012 at 5:44 pm

          She could be anathema with the other justices, a hiss and by-word in the legal community, etc. Not inconsequential for someone like Kagan.

If you haven’t seen today’s Obama presser, you would swear that he took coaching from Verelli himself. A reporter, I believe it was Jake Tapper but I’m not sure, asked him about yesterday’s SCOTUS comments and Obama responded with “Let me be very specific.” He then hemmed, hawed, stammered, sweated, and then turned on the fog machine.

Apparently the teleprompter was broken again.

I find it deliciously ironic for Obama to decry the the Supreme Count as being “an unelected group of people” who could petentially strike down his healthcare bill when the IPAB (Death Panel) is a similarly unelected group of people who could potentially strike down access to healthcare if the law is allowed to stand.

Not only is it obvious that somebody leaked the preliminary SCOTUS vote, it is equally obvious that Obama is a Secret Kenyan Afrocentrist Mooslim Jihadi Commie traitor. Evidence, who needs evidence? Epistemic closure, baby!

Jeezis. And I logged on to lambaste Obama and the Democrats for trying to meddle with the Court’s deliberations.

Why did the Left make this unforced error? Maybe they understand that “conservatives” would respond with a far worse error.

    SmokeVanThorn in reply to gs. | April 3, 2012 at 2:52 pm

    Nothing like lambasting others for a farfetched theory, then suggesting something even more farfetched – and completely illogical.

      Nothing like lambasting others for a farfetched theory, then suggesting something even more farfetched – and completely illogical.

      1. It’s regrettable that my sarcasm may not have been as obvious as I intended it to be.

      2. However, the phrase I bolded implies that you consider the leak rumor to be farfetched. That is the point I was driving at.

      3. It is…unfortunate (and a break for the Democrats)…that, on an occasion when Obama’s tinpot egotism is front and center for all to see, some conservatives distract with an unsubstantiated rumor. IMO those conservatives, whose enthusiasm exceeds their prudence, have responded to Obama’s unforced error with a bigger unforced error that could boomerang and invites ridicule. People trying to dislodge an incumbent President, even one as bad as Obama, can indulge in few unforced errors.

      4. It’s an entirely different matter if there is evidence. But where’s the beef?

    Ragspierre in reply to gs. | April 3, 2012 at 3:03 pm

    I count the leak thingy unlikely.

    The Obami includes a lot of good legal minds, and they saw (THE HORRORS…!!!) what we all saw.

    It ain’t hard to read those tea leaves…

      Browndog in reply to Ragspierre. | April 3, 2012 at 4:33 pm

      Of coarse no one can say for certain, but I think it more likely than not-

      -when was the question asked?

      Last…SOP for planted questions

      -How was the question framed?

      Standard White House talking point-all the children are going to die!

      -What was the venue?

      Nothing to do with Healthcare, but high exposure, covered by all media.

      Like the petulant child he is, it was his first opportunity to stomp his feet and cry because (apparently) somebody told him no.

        Ragspierre in reply to Browndog. | April 3, 2012 at 4:45 pm

        OK, BUT…

        How he got the “word” he reacted to hardly changes your analysis, right?

        Whether it came from seeing the handwriting on the wall, or it was leaked, same-same.

          Browndog in reply to Ragspierre. | April 3, 2012 at 5:05 pm


          But, I always come back to this:

          Kagan was put on the Court specifically to do Obama’s bidding-

          ….in my opinion.

It’s as if people do not actually comprehend what constitutes slavery. It’s Marxist in principle. It combines involuntary exploitation with constrained liberty. It is, by definition, progressive and coercive. We really need to revisit the outcome of the civil and human rights movements. We are quickly moving to regurgitate their causes and with the same motivations. However, I suppose it’s not racist if it harnesses everyone equally. That is, if we do not consider American to be a race, but rely on the more arbitrary classes defined by incidental features.

    n.n in reply to n.n. | April 3, 2012 at 3:00 pm

    In any case, Obama is an opportunist. He exploits differences which have been fomented and fermented, ostensibly, for the reasons prejudices have been preserved, in order to consolidate wealth and power for individuals and cooperatives that pursue them.

    The so-called “health care reform” does not address underlying causes for increasing costs or any other limiting factors. It does not address unequal contributions to either its maintenance or its expenses. It only increases the revenue pool to delay accountability. Well, that, and the individual mandate diminishes individual sovereignty.

    It’s a decision not to be considered lightly or haphazardly as was done in the passage of this law.

Ruth Marcus == another rube self identifies.

Looks like this week’s evil entity is the Supreme Court.

What is curious, is why Barry wants to evilify the court, near 70% want some or all of this law overturned, they want the Court to overturn this illegal law!
During FDR’s time, people wanted some of those FDR laws upheld.

So Mr. Barry is not only running against the court but against the will of the American people as well!

Doug Wright | April 3, 2012 at 4:47 pm

I would comment on this posting however, I shall, instead, walk around the house, whistling in the dark!

Oops, who moved that damnable Ottoman?

But it will correctly be described as an activist court if it overrules the mandate or Obamacare.

    Ragspierre in reply to jimbo3. | April 3, 2012 at 5:57 pm

    Yah…no. Bullspit. It will be correctly described as a CONSTITUTIONALLY GROUNDED court.

    What a stupid thing to say.

My worry about Obama is the fact that he is intent on destroying America and, of course, those of its institutions that are not immediately satisfying his every desire.


From the 5th Circuit (one of the best)…

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

    Browndog in reply to Ragspierre. | April 3, 2012 at 6:35 pm


    Well, the way I see it-

    Most Americans were hopeful that politics would not play a role in the SC decision-

    Obama was fearful it wouldn’t–so he made sure of it.



      Ragspierre in reply to Browndog. | April 3, 2012 at 6:43 pm

      Truly exquisite. Payback IS a MOTHER…

      GOOD to see a co-equal branch jealous of its prerogatives….!!!

    Judge Smith ORDERED Holder to have a 3 page, single spaced letter on his [Smith’s] desk by Thursday stating whether or not Obama believes that the Supreme Court’s decisions are the law of the land and can hold that laws passed by Congress and “rules” of federal agencies are or are not Constitutional. It will be 3 pages, single spaced horsehockey. Holder will have some poor schmuck underling write the letter so the poor schmuck can be fired if the letter is not satisfactory. Operation Fast and Furious all over again.

BannedbytheGuardian | April 4, 2012 at 2:06 am

He could send the SCOTUS on a Trail of Tears. Poor Ruthie would have to be wheeled across by the sturdy Elena & the Wise Latina .

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