From an attorney friend who’s long been more pessimistic than me1 about the possibility that the Supreme Court might overturn Obamacare:
Dalia Lithwick posted an updated piece after the arguments — the gist of which was that they really might strike it down. She didn’t mention her “no they really won’t” piece (I wouldn’t expect her to yet, but it’s interesting how fragile her previous piece’s argument seems to be).
Toobin’s hair on fire response is interesting because I think legal watchers deep down believed that the Court would not be so superficial as to unhinge established jurisprudence for an ideological cause. It’s a fun parlor game, but they figure that when sobriety prevails the court will bow to precedent where — as here — the issue is squarely within existing precedent. Well, no, and they are perfectly free to channel right wing bullshit points such as inactivity vs. activity. I think this really rattled Toobin to see justices behaving like congressmen from Alabama in their arguments.
Lithwick points out that no one on the right discussed the case law. I mean …. why, who needs it!?
I’m still sticking with my guess that the individual mandate survives. But I’ll confess that I’m sure not thinking it’ll be a 7-2 decision any longer.
1Yeah, the Supreme Court is a political body and always has been. I’ve never thought otherwise. But I had a hard time believing they could be so brazenly political that they’d overturn a law so plainly supported by past precedent. Just goes to show that it’s almost impossible to be too cynical these days.