Even Scalia? CNN Legal Analyst Toobin Says SCOTUS Might Uphold ObamaCare 8-1

If the Supreme Court upheld ObamaCare, would it really be by an eight-to-one margin? CNN's senior legal analyst Jeffrey Toobin said it's possible, expressing more confidence in that prediction than the common analysis that the Court is evenly split on the issue with Justice Anthony Kennedy as the tiebreaking vote.

Toobin's analysis echoes the overwhelmingly positive liberal meme that ObamaCare will be upheld by a wide margin. He had already knocked the opposition case as "really weak."

"I actually think that Chief Justice Roberts and perhaps even Justice Scalia and Justice Alito might join Justice Kennedy in upholding the law," the liberal analyst opined on Friday's The Situation Room. "In striking this law down, it would really be a big change in Constitutional law, and I'm not sure this court is ready to do it."

That remark came after Toobin admitted that the Court is ideologically divided with justices interpreting the Constitution "in different ways." Nonetheless, he believed that the conservative Justices would uphold legal precedent – which he thinks favors ObamaCare's individual mandate.

In his latest New Yorker column, Toobin wrote that the conservative justices had already "cut a swath" through previous Court arguments on race and abortion and could do so again by declaring the bill unconstitutional.

A transcript of the segment, which aired on March 23 on The Situation Room at 4:45 p.m. EDT, is as follows:

JEFFREY TOOBIN: But it's also important to remember they have judicial philosophies. Justice Ginsburg, Ruth Bader Ginsburg, is a liberal Democrat. That's how she sees the Constitution. Antonin Scalia is a conservative Republican. That's how he sees the Constitution. And that doesn't make one right or wrong, but it certainly makes them very different. They are going to look at this case differently, as a result. So it's not a question of sort of shifting opinion because of politics. It's their politics leads them to view the Constitution in different ways. And they are very likely to see this case in different ways, as a result.

WOLF BLITZER: And very quickly, because we're out of time Jeff, this is a case where you have four conservative justices, four liberal justices, one swing justice, Anthony Kennedy. Are you anticipating a five-four decision with Kennedy making the decisive vote?

JEFFREY TOOBIN: Well that's certainly a possibility, and certainly the four Democratic appointees will vote to uphold the law. I actually think that Chief Justice Roberts and perhaps even Justice Scalia and Justice Alito might join Justice Kennedy in upholding the law. In striking this law down, it would really be a big change in Constitutional law, and I'm not sure this court is ready to do it.


 

Matt Hadro
Matt Hadro
Matt Hadro was a News Analyst for the Media Research Center's News Analysis Division from 2010 through early 2014