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." [Video below the break.]
"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.
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Comments
eight-to-one margin?
Submitted by CarlosS on Fri, 03/23/2012 - 6:24pm.
More like 14 or 15 to 0..., a few dead justices will vote, too..., it's the Chicago way, you know
(9-0
Submitted by dmaley1714 on Fri, 03/23/2012 - 6:39pm.
I am sure Toobin predicted the 9-0 smack down of the EPA.
FAIR v Rumsfeld`
Submitted by libBuster on Fri, 03/23/2012 - 7:02pm.
How did he do on his FAIR v Rumsfeld prediction? That was a slam dunk for the law schools according to th "experts". It went 9-0 the other way. . There are some real 10th Amendment and commerce clause issues in the ObamaCare case. This kind of blather is embarassing for Tobin and CNN. Tobin comes across as a beer drinking fan trash talking before a game. No where do I see "Legal Scholar".
Toobin assumption of politics in SCOTUS decision
Submitted by Galvanic on Sat, 03/24/2012 - 3:50pm.
In his discussion, Toobin assumes that (a) conservative Thomas is a sure vote against Obamacare and (b) the four liberal justices are sure votes for it. He believes that Kennedy will probably vote for, and possibly persuade as many as 3 conservative justices to go along.
What Toobin is unwittingly saying is that of the 5 conservative justices, 4 will actually judge the case on its merits, while all 4 liberal justices will uphold Obamacare as a matter of ideology.
➚ Galvanic
Submitted by Cool Arrow on Sat, 03/24/2012 - 9:04pm.
That shoots the Liberal theory that Judge Thomas is an ig'nint tagalong all to hell.
Suddenly it's plausible Thomas could stand alone against his peers?
Galvanic is right.
Submitted by Herbster on Sat, 03/24/2012 - 11:32pm.
Ginsburg the senile and the two unwashed ones appointed by obambi will vote as they are told. The merits of any case mean nothing to them. They are strictly interested in advancing "The struggle" through any means. Advancing the sociocommunist agenda trumps all. These are true useful idiots........term limits anyone? No more "For life" appointments. That said, I fear the fix is in, or should I say, "Fixes?" Healthcare and the birth certificate/eligibility question. I understand there was a quiet meeting held at the public housing residence of the present occupant. In attendance were eight of the justices - Scalia did not attend. What went on? What was discussed? Food for thought.
"a big change in Constitutional law"
Submitted by almostacowboy on Fri, 03/23/2012 - 6:46pm.
And what "big change" might that be? The SCOTUS getting leviathan somewhat off our backs?
No Toobin
Submitted by allouchsit on Fri, 03/23/2012 - 6:47pm.
In my 30 years practicing law in the federal court system Toobin has never ranked very high on my list of knowledgeable legal scholars. In fact, Toobin has never made my top 10, or top 20. I am not sure why anyone would care what Toobin thinks. If you want some real legal analysis, I suggest you spend a little time over on http://volokh.com, or some other legal blog with real practicing attorneys, rather than listening to some fake attorney on CNN.
Eugene Volokh is not only brilliant but versatile. Many years
Submitted by Rush Fan on Sat, 03/24/2012 - 1:30am.
ago I managed a computer center for GMHughes. We purchased VESOFT security software for our HP3000 computer systems developed by Eugene Volokh and his father, when Eugene was a software programmer.
As for Toobin, he has an impeccable and exemplary reputation.
Obama the Constitutional scholar
Submitted by TheHistorian on Sat, 03/24/2012 - 3:44am.
I remember back in 2008 that the media was also trying to convince us that Barack Obama (we dare not say his middle name then) was a Constitutional scholar. Toobin reminds me of a similar one.
As to how the Supremes vote, I was disappointed at Nelo and a host of other decisions that should have been 8 or 9 to 1 or 0 in the other direction. I just don't count on these justices being able to find such things as articles and amendments. They seem to be stuck on the preamble as the only thing that is worth enforcing.
Dennis Prager
The opposition's argument is
Submitted by Edhenry on Fri, 03/23/2012 - 6:58pm.
The opposition's argument is weak?
Their argument is only the fundamental rights of our founding fathers: Individual liberty, limited government, individual responsibility.
Journ-O-list 2.0
Submitted by Free Stinker on Fri, 03/23/2012 - 7:09pm.
The Make Believe Media is just getting prepped for their faux outrage when SCOTUS overturns PPACA "in a surprise decision".
Its the foundation for their next narative.
/// Sarah Palin Fan since July 11, 2007 /// خال
Journ-O-list 2.0
Submitted by Free Stinker on Fri, 03/23/2012 - 7:12pm.
The Make Believe Media is just getting prepped for their faux outrage when SCOTUS overturns PPACA "in a surprise decision".
Its the foundation for their next narative.
/// Sarah Palin Fan since July 11, 2007 /// خال
Too Bin
Submitted by mmilesll on Fri, 03/23/2012 - 7:28pm.
This idiot is just the type of "expert" we would expect on CNN. Does this clown ever get any air, any air at all? I'm sure he will come back and apologize for being a complete idiot. Count on it.
Hoping we have some serious judges,
Submitted by fscarn on Fri, 03/23/2012 - 7:38pm.
Because if we don't, then the entire reason, the entire reason, for having a Constitution in the first place - to restrain the created government - is utterly destroyed.
I look at the Court's lefties as utterly lost causes. The oaths which they took to adhere to "this Constitution" (the exact phrase used in Article VI) are baldly false and worthless. They want NO restraints on government.
If Obamacare is upheld the very thesis of a limiting document become irrelevant.
The issue is THAT serious.
The most common argument I
Submitted by big.league.slider on Fri, 03/23/2012 - 8:53pm.
The most common argument I hear from liberals justifying federal programs like ObamaCare or MediCare is the constitution's "general welfare" clause. I would argue that such welfare programs that only benefit certain individuals are not "general" in nature.
Instead, I believe what the framers meant by "general welfare" are functions that benefit all citizens equally at all times. Things like a common national defense, a federal court system, a uniform system of laws, etc. Since ObamaCare only benefits certain individuals at the expense of others, it does not actually "promote the general welfare", but instead "promotes the individual welfare". And therefore has no Constitutional justification.
Interesting Analysis by Toobin
Submitted by Kingfish17 on Fri, 03/23/2012 - 10:47pm.
Too bad he didn't really say anything. Exactly why is Obama Care constitutional? Because of the judicial philosophies of the bench?
"You can’t go take a trip to Las Vegas...on the taxpayer’s dime." Barack Obama
Hey Toobin, put down the
Submitted by rbosque on Fri, 03/23/2012 - 10:17pm.
Hey Toobin, put down the crack pipe your Marxist ********!
He is simply following the
Submitted by d1carter on Fri, 03/23/2012 - 10:50pm.
He is simply following the narrative that has been previously set by the legacy media. He knows he's got a gravy train at CNN and he will do nothing to put that at risk.
Why his track record is as good as a fortune teller.
Submitted by drsamherman on Fri, 03/23/2012 - 10:55pm.
Of course, he only reveals that he meant to say something else after being told the outcome.
8-1 against the Constitution
Submitted by m1xram on Sat, 03/24/2012 - 1:02am.
"I actually think that Chief Justice Roberts and perhaps even Justice Scalia and Justice Alito might join Justice Kennedy in upholding the law,"
I'd rather they uphold the Constitution, but that's just me.
As to the 8-1 result, I expected the DC gun ban to be 7-2 or better but it was 5-4. Once again, so much for the Constitution. These issues are clear cut and anti-Constitutional but we still get close votes. It's an indication that we have serious problems. We must live in Ameratopia now.
I'm not buying Obamacare, it's not required by the Constitution for American Citizens. Soon America will be locking up its own citizens as political prisoners.
The opposite of Left is Freedom.
Toobin's 8-1 judicial
Submitted by celator on Sat, 03/24/2012 - 9:43am.
Toobin's 8-1 judicial forecast can be found in the same book where SCOTUS is predicted to mandate that people with wings and flat feet can no longer vote in a national election. Fiction.
Boobin Toobin
Submitted by charlietexas on Sat, 03/24/2012 - 1:20pm.
In his 8-1 prediction of SCOTUS upholding Obamacare mandate, he is referring to the one dissenting vote Justice Clarence Thomas? Wouldn't that be racist? If Thomas were a Democrat and a Republican commentator made that assessment, the Dems would be all over him and go off the reservation by calling Toobin a racist and that he thought Thomas was a stupid, poor black person who couldn't grasp the enormity of another black man and congress mandating the largest legislation for all the poor people of the country.......oh wait a minute...they already think that of Thomas. They just won't say it.
I have no idea how the SCOTUS will decide this . . .
Submitted by Galvanic on Sat, 03/24/2012 - 1:54pm.
. . . I was surprised and outraged at the 5-4 decision in Kelo v. New London, upholding the extension of eminent domain to permit government seizure of private property from one citizen to give to another.
But I really doubt that it will go 8-1 to uphold this. If it is upheld, I believe it will be 5-4 with Kennedy being the swing vote, as he was in Kelo.
➚ 5-4 in favor
Submitted by Cool Arrow on Sat, 03/24/2012 - 1:55pm.
If not, The President will send the New Black Panthers to do what they've threatened.
Since the NBP already owes Eric Holder a favor for refusing to prosecute blatant voter intimidation in Philly. This is the South Chicago style upbringing of which Michelle Obama is so proud.
Toobin's always had his head where
Submitted by bigtimer on Sun, 03/25/2012 - 1:12pm.
the sun doesn't shine. He's never been right about anything...and he won't be in this case either.
Totally clueless!
That's what is required to stay employed on CNN dontcha know!
'Doubling down on stupid is not a particularly good idea'~Breitbart