Today’s Supreme Court audio

Here’s this morning’s audio from the arguments in the Affordable Care Act challenge at the U.S. Supreme Court:

Find the transcript of today’s hearing here.

Most of the major experts on the Supreme Court seem to be suggesting whatever way the issue goes, it’ll be a 5-to-4 decision.

At SCOTUSblog, Tom Goldstein kept an eye on Justice Kennedy, considered by many to be the likely swing vote.


Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.

For the record, Justice Clarence Thomas did not ask a question at today’s hearing. He has not asked a question at the court in six years.

  • Craig

    The interesting part of this to me is that, if instead of casting it as a “penalty” for not purchasing health insurance, the government had raised income tax rates by the same percentage as the current “penalty”, then provided a “credit” of the same amount to those who purchased such an insurance plan, no one likely would have even thought to blink an eye (except, of course, for the all-out screaming fits about “raising taxes” from the usual suspects).

    In other words, the entire issue is about the semantics.

    For my part, I’d prefer to let the current system completely melt down all on it’s own first, then come in with a real system, cries of “socialism” be hanged. It’s more pain and suffering in the interim, but sadly, for some, negative reinforcement is only the way they learn. Based on the analysis above, looks like we might go that route that after all…

  • Brandon Maloney

    why is there even an argument over this issue? in very plain language, no government has the right to put a tax on life. they can tax my cheese burger, tax cigarettes, and tax alcohol. every thing I hear about this health care plan is “we need to make health care affordable”, and yet I have not once heard anyone make a single suggestion about making health care more affordable. I’ve heard endless debate and political posturing about a bill that changes who’s paying for a service, but doesn’t have any solutions on making that service more affordable.

  • Jim Shapiro

    “For the record, Justice Clarence Thomas did not ask a question at today’s hearing. He has not asked a question at the court in six years.”

    It is outrageous that this individual has a position of such enormous power.

    He should be impeached for not fulfilling his responsibilities.

  • Joel

    Unbelievable to me that Justice Thomas has not asked even one question in SIX YEARS. Makes me ask, “Is this because he has already made his decision before these cases come to the Supreme Court?”

    At the very least, he is clearly not showing an inquisitive nature, which seems like an important quality to hold such an important position.

  • Disco

    Regarding Thomas and others on the court: isn’t it interesting how the Bush Presidencies continue to haunt this nation?

    I would say that the failure to remove GW Bush from office in 2004 is easily among the top five turning points and most important events in this country’s history, and it may very well be number one. The current makeup of the supreme court is the reason why.

    When the Republican clown car says that 2012 is the most important election, they’re lying. 2004 was the most important, and I seriously doubt that any future election will ever outrank it.

  • Bob Collins

    // “Is this because he has already made his decision before these cases come to the Supreme Court?”

    I tend to think most do. Presumably they’ve read the briefs since they cite case law. I wish the Supreme Court and its justices weren’t so secretive so there’d be more information on what influences them — if anything — in oral arguments.

    I also want to know what happens now. Do they get together over lunch and kick this around? Or do they just send e-mails?

  • http://ofbuckleyandbeatles.wordpress.com/ Drae

    @Jim Shapiro – what are the responsibilities of an Associate Justice? Is it mandated somewhere they must ask questions in court? Because my google-fu says no. Besides, I’m pretty sure that if Justice Thomas was violating his duties in this regard, the left would certainly be pushing for his impeachment. They’re not, so I’m thinking not asking questions in open court isn’t enough to press for impeachment. You’d have to prove he isn’t reading the case files, or refusing to write opinions when asked by the Chief Justice or something along those lines.

    @Disco – your comment is just a wee bit hyperbolic. GWB put two Justices on the court. One replaced a swing vote (Day O’Connor for Alito) and one was a constructionist with another constructionist (Rehnquist for Roberts). However, Obama replaced swing voter (Souter with Sotomayor) and liberal vote for a liberal (Stevens with Kagan). Essentially, the make-up of the court hasn’t been altered as drastically as you’re claiming. Try to keep in mind some of the swing votes on the court (Day O’Connor, Souter and Kennedy) were nominated by republicans. So was John Paul Stevens. So, ironically enough, if you want more swing voters and liberals on the court, a republican president might be exactly what you need.

  • Bob Collins

    There’s nothing impeachable about not asking a question. It is troubling, however, to imagine someone sitting in such a position who has no curiosity about a single legal argument over the course of six years that he would ask a question of the person making an argument.

    OTOH, maybe that speaks to the perfectly written and explained briefs that flood the court. .

  • http://ofbuckleyandbeatles.wordpress.com/ Drae

    Bob – I think another contributing factor may be that Justice Thomas is all too aware of how anything he says publicly will be overly scrutinized. He was, after all, one of the most contested nominees to be placed on the Court and that circus may have affected his desire to come under the microscope again. Just a thought.

  • Jim Shapiro

    Drae – “what are the responsibilities of an Associate Justice? Is it mandated somewhere they must ask questions in court?”

    I did my googley due diligence as well, and could find no requirements regarding levels of participation.

    My statement was rhetorical.

    Just as there is sometimes a distinction between the letter of the law and the spirit of the law,

    I would argue that in Thomas’ case, there is a distinction between the written requirements of his job responsibilities and the ethical fulfillment – or lack thereof – of those responsibilities.

  • http://ofbuckleyandbeatles.wordpress.com/ Drae

    @Jim – that’s exactly what I was saying to Bob. Justice Thomas has had a target on his back since he was nominated, and I think he’s tried to be under-the-radar in an attempt to keep the focus on the cases instead of on him. It is possible the other Justices are asking the same questions he would ask himself. We just don’t know, because none of us are mind-readers.

    But what are the ethics involved here? That the Justices go into court with open minds? Because it’s already been suggested that they have their minds made up before oral arguments, so should they all be impeached for that? Or are the ethics involved that they do their homework and justify their decisions in their written opinions?

    It’s as though Thomas is damned-if-he-does and damned-if-he-doesn’t. I believe there is more to unethical behavior in a Justice than simply not asking questions in open court. It’s a serious allegation you’re making based solely on one aspect of the job.

  • kurt nelson

    @Jim,

    THough I am not a fan of Thomas’ jurisprudence, there is no presumption that a Justice ask questions during oral arguments. He, by all accounts is very engaged, but chooses not to talk. By his own admission , this is not because he has predetermined the outcome or his argument, but he lets the more verbose on the bench do the talking.

    If you have not read Thomas’ dissent in Riach, which is front and center this week, you should have a read, it is a brilliant argument.

    Regardless of his approach during oral arguments, he is a very principled and thorough jurist, and does not vary in his approach to the Constitution. He will never be accused of being a swing-vote.

  • doug sandels

    Another thing to keep in mind is that Justice Thomas is the most strident originalist on the current Court. To him, many of the cases that reach the Court may be answered by digging into treatises and cases from the 18th century. If he believes that the answer should come from those sources, it is unlikely that asking a question during oral argument will help enlighten him because those attorneys probably will not have spent too much time trying to research the issue in a way to satisfy him.

    I don’t have a problem with him approaching oral argument that way. Sure, it’s quirky, but the whole point of the Court is that every Justice must approach the issues from their own background of how they feel will best help they find the correct answer.

  • http://ofbuckleyandbeatles.wordpress.com/ Drae

    @Kurt Nelson – you mean that Justice Thomas supported home cultivation of medicinal marijuana? Boy – Jim might have to rethink his opinion of Justice Thomas. Heehee.

    I was unaware of Thomas’ decision so I want to thank you for bringing it to my attention. It IS a well reasoned opinion, and gives me hope that some day we will have more reasonable drug laws.

  • Jim Shapiro

    Drae – “I believe there is more to unethical behavior in a Justice than simply not asking questions in open court. It’s a serious allegation you’re making based solely on one aspect of the job.”

    You mean the Anita Hill thing?

    Or perhaps you’re referring to Thomas’ refusal to recuse himself when the court was hearing Bush v Gore, although his spouse was vetting applications for the Bush administration while working for the Heritage Foundation?

    Or maybe you’re talking about his not recusing himself from this case, although his wife heads an anti-ACA lobbying organisation, Liberty Consulting, which boasts on its website of using her “experience and connections” to help clients with “governmental affairs efforts”.

    Are those the unethical behaviors you’re referring to Drae?
    :-)

  • Jamie

    Thomas should never have been placed on the Court in the first place. He is a pervert, and his lack of good JUDGMENT in sexually harassing Anita Hill (and others, I’m sure) should alone have been enough to keep him off the Court — the Supreme F&*%-$#G Court, for crying out loud!!

    And he hasn’t said anything in 6 years, but before the time 6 years ago, he had said and written almost nothing at all in his whole time on the Court. And no, it may not be an impeachable offense to show a lack of interest, curiosity, and ability to take an active role and engage in critical discourse, but it sure as hell shows that he is not qualified. I’m guessing that he’s been given one or two cases to write decisions or dissents about in order to show people that he can do SOMETHING.

    “answered by digging into treatises and cases from the 18th century…” That, too should indicate his unsuitability for the Court.

    Also, “liberals” HAVE been trying to get him to recuse himself on some cases, and he won’t of course, because he is just another Republican bully. His refusal to recuse himself may be grounds for impeachment. But in this political atmosphere, and because he’s the only black person on the Court, he’ll never be impeached.

  • doug sandels

    Ok, I never in my wildest dreams thought I would be a Clarence Thomas apologist (because I find several of his views downright silly), but…

    Thomas should never have been placed on the Court in the first place. He is a pervert, and his lack of good JUDGMENT in sexually harassing Anita Hill (and others, I’m sure) should alone have been enough to keep him off the Court — the Supreme F&*%-$#G Court, for crying out loud!!

    Justice Douglas, the longest serving Justice in the Court’s history BTW, sure had some great morals when it came to the opposite-sex although no outright accusations of sexual harassment (probably because it didn’t really “exist” in the early 1960s – try to tell me his third marriage was on the up-and-up).

    Also, please show me where the qualifications are listed for a Supreme Court justice and which ones Justice Thomas doesn’t meet. As recently as 1957, there was a Justice who didn’t possess a formal law degree. The main thing I see in art. III, § 1 of the Constitution is that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .” Justice Thomas has been on the Court for twenty years, if he hasn’t engaged in “good behavior” (and his tax return issues seem a little sketchy) it seems like someone, somewhere would have tried to have impeached him by now.

    And he hasn’t said anything in 6 years, but before the time 6 years ago, he had said and written almost nothing at all in his whole time on the Court. And no, it may not be an impeachable offense to show a lack of interest, curiosity, and ability to take an active role and engage in critical discourse, but it sure as hell shows that he is not qualified. I’m guessing that he’s been given one or two cases to write decisions or dissents about in order to show people that he can do SOMETHING.

    Justice Thomas writes opinions just as frequently as the rest of the Court. One reason he isn’t known for writing any landmark cases is because he is unwilling to bend his views to obtain a majority. Thus, he frequently writes concurring opinions that take holdings even farther than the majority.

    “answered by digging into treatises and cases from the 18th century…” That, too should indicate his unsuitability for the Court.

    Originalism is a Constitutional theory that did not originate with Justice Thomas. Other Justices, from Scalia on the current bench, to those from the past like Justice Hugo Black (seriously, look up his First Amendment jurisprudence for an extreme Constitutional take) have also approached the Constitution similarly.

    Also, “liberals” HAVE been trying to get him to recuse himself on some cases, and he won’t of course, because he is just another Republican bully. His refusal to recuse himself may be grounds for impeachment. But in this political atmosphere, and because he’s the only black person on the Court, he’ll never be impeached.

    I’m not going to bother responding to this.

  • http://ofbuckleyandbeatles.wordpress.com/ Drae

    Jim, Jim, Jim…

    Move the goalpost much? Apparently your comment is what you meant but chose to keep vague so you could, what? Play a little gottcha game? Is that ethical? Not that there is much of an ethical code in blog commenting.

    I’m not here to defend the entirety of Justice Thomas’ SCOTUS career, but suggesting he be impeached for not asking questions was ridiculous and to follow that up with a vague questioning of his judicial ethics was misleading and not conducive to a fair debate.

    Come on, Jim. You can do better than that. Next time, don’t pull punches. Just say what you want to say.

  • Jim Shapiro

    Drae, Drae, Drae -

    You say move the goal post, I say go with the flow of the discussion.

    While you show your intelligence and wisdom in not attempting to defend Thomas beyond the question of whether or not it’s ethical to remain mute during a process that by design is meant to elucidate verbal arguments,

    it was YOU who called for a further accounting of this scoundrel’s unethical behaviours: “I believe there is MORE to unethical behavior in a Justice than simply not asking questions in open court. It’s a serious allegation you’re making based SOLEY ONE ASPECT of the job.”

    I simply complied with your implied request in pointing out that there IS more, and that my serious allegation is NOT based on soley one aspect of the job.

    Nice try though.

    (Don’t worry. We’ll always have Randy :-)

  • vicki abt

    If Justice Thomas was not a black man would he have been tolerated all these years? During his nomination process he proclaimed that the attacks on him by Anita Hill were “racist”. Well, that he never can ask a question during Supreme Court arguments is a total farce. He doesn’t ask questions because he doesn’t know enough to ask meaningful ones!!

  • http://ofbuckleyandbeatles.wordpress.com/ Drae

    Now if only Bob could figure out a way to combine both Star Wars AND Clarence Thomas in one post, then we’d really have a barn burner.

  • Jim Shapiro

    Drae – “Now if only Bob could figure out a way to combine both Star Wars AND Clarence Thomas in one post, then we’d really have a barn burner.”

    Isn’t it obvious? Thomas as Darth Vader, only significantly less articulate.
    :-)