RUSH: There's a very, very left-wing blog called the SCOTUS blog, and the guy there is predicting 6-3 for the whole thing being found constitutional, 6-3. A lot of others have looked at his reasoning, "Yeah, you know what, I like that reasoning, it makes perfect sense to me. I think I'll sign on to that." If it happens, and if it happens the way the theory explains it, we don't have a court looking at the law anymore. We have a fully politicized third branch of government.... The chief justice, John Roberts, gets to decide who should write the opinion when he is in the majority. He assigns it. This theory holds that he'll write it himself....Now, if Rush links to the SCOTUSblog item he's talking about, I can't find it over there. I went to SCOTUSblog to look for it myself, and I found something else that really shook my opinion that SCOTUSblog is a sober place that maintains a professional gloss:
The idea that this legislation is so important, so transformative that a 5-4 decision is not desirable by the chief and by a lot of people, that it would roil the country. A 5-4 decision is too narrow if they're gonna find the bill unconstitutional.... The theory is that Kennedy will go ahead and join the libs and make it 5-4 for total constitutionality, because he signaled that. Then Roberts, after having seen that, knows he can't stop it, so he joins the majority to make it 6-3 so that he gets to write the opinion. And in writing the opinion, Roberts will then limit the scope of the Obamacare bill to something like, yes, Congress can force us to buy health insurance, but nothing else....
Now, the theory that I just gave you comes from SCOTUS blog. It's run by a very left-leaning guy. A lot of people who are not liberals have run across this theory and it appeals to them. It's slowly but surely behind the scenes becoming conventional wisdom, and of course the left is glomming onto this, 'cause they love this possibility....
Now, don't worry too much about this theory, folks. The theory is becoming conventional wisdom and that means it's irrelevant and is wrong. It's advanced by the left. And, by the way, here's a quote from Senator Richard Blumenthal, former attorney general Connecticut, now Senator from Connecticut. The left is playing this "you will ruin your reputation" card. That's what this theory is about, the theory that justices will see it. They're trying to intimidate the court into ruling in favor of Obamacare....
So you guys on the court, you people on the court, you are going to destroy the court and your credibility and people won't obey if you do the right thing here and find this constitutional. So the effort to intimidate is under full swing.
my "civility bullshit" tag to brush up on the topic.
(Yeah, I called it "civility bullshit" from Day 1, because I always thought it was a one-sided effort to quiet critical voices and because I don't accept instruction on form of expression and because I think the demand that everyone speak in a sober manner further empowers those who already hold more than their share of power. As they say in China: "Can I say a curse word? No? Then I've got nothing to say.")
But back to Tom Goldstein in SCOTUSblog:
Opponents of the Affordable Care Act and the Obama Administration... did a tremendous job framing their constitutional argument against the statute to the public, the lawyers on their side were brilliant, and it appears that they had a receptive Supreme Court majority. It was an eleven on a scale of one to ten.Here's the quite hilarious and brilliant ad:
Now this. The RNC released an advertisement... with audio from the halting beginning to Don Verrilli’s oral argument on the individual mandate to make the point that (as the ad’s title says) “ObamaCare: It’s a tough sell.”
Goldstein, like the Bloomberg News article he links, professes outrage over the way the ad plays Verrilli's drinking of ice water and saying "excuse me" twice. You hear it and you hear it again. Duh. The repetition of the sound bite is obvious, but Goldstein and Bloomberg call it "doctored" audio, as if they've uncovered something nefarious, and do a high dudgeon routine:
I’ve been in practice for seventeen years, and the blog has existed for ten, and this is the single most classless and misleading thing I’ve ever seen related to the Court. It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it. I would be shocked if a serious conservative lawyer would stand by the ad.Oh, for... Can I say a curse word? No? Then I've got nothing to say.