a disclaimer of sorts: i refer to PPACA as obamacare. i don’t do it to be pejorative, it just seems to be a bit clearer than referring to it as the ACA, PPACA, or obama’s healthcare plan. everyone knows what i’m talking about when i say obamacare and it’s an efficient use of syllables.
as a constitutional law junkie, this week at SCOTUS was the equivalent of the super bowl. this term is already huge–tons of cases on broad, highly political issues–and to add obamacare to that is very exciting for this kid. unfortunately (or fortunately?), monday was a crazy day for my family–i started a new job and my dad had knee surgery (he’s home and doing great), so i didn’t have a chance to follow the litigation until this weekend. i had a marathon day yesterday listening to arguments from all three days (even the anti-injunction act arguments, which were kind of like watching paint dry) and then reading all kinds of analysis. holy crap, it’s exciting.
rather than get into the actual constitutional analysis (because really, we all know i’m a libertarian, your guess as to my opinion is probably accurate, and there has been exceptionally great analysis by people far smarter than me), i’m going to comment on a few things relating to the coverage that have particularly bothered me.
- attacking solicitor general don verrilli for his performance. first of all, oral argument is largely a charade. the justices pretty much know how they feel about something before they hear, “mr. chief justice, may it please the court.” secondly, they’re surely not going to be swayed by verrilli’s coughing and water drinking. he answered their questions clearly and effectively, it just wasn’t the smoothest of presentations. finally, his oral advocacy skills were great monday, he just had a tough tuesday which wasn’t helped by paul clement’s exceptional performance. (and ps: i totally envision a future of “justice clement.”) i don’t think anyone who has ever spoken in front of a group feels anything other than pity for him. he had a rough week and the assaults need to stop.
- related, the GOP ad characterizing obamacare as “a tough sell” was nothing more than pathetic hackery. there are a lot of substantive and legitimate ways to attack obamacare. but doctoring the audio and making fun of verrilli is garbage. also? if you were interested in SCOTUS allowing video, this ad is definitely working against you. a few years ago i attended a small lecture with justice scalia and his comments regarding video in SCOTUS were negative mainly because of his fear of peopl taking things out of context for political gain. this is exhibit A.
- much of the mainstream analysis has focused on how obamacare is obviously going to be struck down because of the questions asked in oral arguments. people. don’t read into the questions asked by the justices. it means nothing for the swing votes. so stop using questions kennedy asked as “proof he’s going to vote X way.” he may be trying to discount a line of thinking, he may be just inquiring. point is, you don’t know what he’s thinking so stop pretending you do.
- for the love of all that is good and holy, STOP USING THE PHRASE “ACTIVIST COURT.” it doesn’t have a meaning anymore because so many people have bastardized it. “oh, the court did something with which i disagree, they’re so activist.” their job is to interpret the constitution. sometimes that means striking down laws congress has enacted, sometimes that means upholding them. that means they’re doing their job, not parading around beyond their powers. so please, i beg of you, stop using that phrase immediately.
i can’t friggin wait until june/july. though i must say, i’m hopeful but pessimistic.