Roberts’ less hostile questioning hinted at the ultimate outcome


By Steven Woodruff

There is no doubt we are in for another intense round of healthcare mania while the lawyers and justices wend their way through the oral arguments and review this week. Certain things have gone as predicted. There were demonstrators around the Supreme Court building massing with placards and opposing points of view.  The freaky analogies have begun to surface. And, as usual, Clarence Thomas has declined to offer a single question.  Is it disdain or just plain disinterest that motivates him? Or perhaps he has already decided and doesn’t want his thinking clouded. Either way, it’s bad news.

Scalia got off to a good start, dumbing down the argument by seeking cover under the old broccoli canard.  He knows everybody hates broccoli so expect him to jump the net with this one. He did his best to flip the government’s case that the need for healthcare is something the government can regulate because it’s something everyone is going to need. “Everybody has to buy food sooner or later, so you define the market as food. Therefore everybody is in the market. Therefore you can make people buy broccoli”, said Scalia. The only head that wasn’t spinning was Scalia’s.  

The New York Times, which is always editorializing by running photos that seem to go easy on the level-headed left while delivering blows to the right’s lunatic fringe put up a good one today. On one side of the photo, a sensible looking guy stands with his modest sized sign in hand. It reads: “Don’t Deny My Healthcare, Protect the Law”. Next to him stands a guy with a huge sign in the shape of a stop sign that rests on a hefty pole about nine feet tall. It reads:  “NO OBAMARX CARE”. There is another reference to the Constitution which you can’t quite make out. We get what’s going on here, and it’s what’s been wrong with the debate from the beginning. One guy thinks he’s worth five of the other guy. He’s louder; he’s ruder. He’s the real deal, a defender of the Constitution. He’s in the baiting game. He hopes you’ll be frightened. He gets his finer points of tuition about creeping socialism, constitutional violations, and  America’s slumping, downward spiral from Newt and Ron Paul. He may not have been through the document from stem to stern himself, but he’s convinced President Obama is having a field day with the thing.

In the Times account that ran with the photograph, Adam Liptak, the Times Supreme Court correspondent,  described an encounter between two women on opposite sides of  healthcare issue as they faced off briefly over abortion. Ms. Otto, who supports the law, was concerned because conservative policy, she said, was curtailing the availability of contraception, abortion and other services. Clinics were being closed, access denied. “Lies”, cries the other woman, who simply walks away. Her parting volley: “I have actually read the bill, and I suggest you read it too.” But anyone who has read a real news source knows that clinics are closing. They are being ground down with politically motivated cuts in funding that affect their services. Doctors have been threatened, and not long ago in Kansas, Dr. George Tiller, who ran a clinic for women’s health care services, was murdered for his abortion assistance.

Curiously, both sides dial up the nostalgia for the real America, the old America, that America before the current season of acrimony. One side is thinking, perhaps, about the old civility, when Democrats and Republicans could sit down and hammer out Medicare, The Civil Rights Act, and the provisions of the Great Society. The other side continues to double down on how best to create government permanently based on the principles of a government by Tea Party.  But let’s not forget, that the America of yesteryear was also the America content with segregation, voter suppression, and debilitating, secret poverty. Nostalgia has its drawbacks.

In the end, it turned out ObamaCare was American after all

In his arguments before the Supreme Court, Solicitor General, Donald Verrilli, the government’s attorney, seemed overwhelmed. His convoluted replies made little sense. He talked himself to death. He was surprised by the hostile questioning from the conservative justices.  If this is the case, this guy strikes me as a very poor lawyer, indeed. He’s lobbing and the other side is going with the overhead smash. I hope he is considering some serious strategy adjustments.  In the end, how will he feel if the decision is split 5 to 4 (as it may very well be) and overnight, those 30 million people are back in healthcare free fall.  It’s time to pin back some ears, Mr. Solicitor. A service ace or two wouldn’t hurt, either.

Perhaps the most outlandish non sequitur came from another demonstrator who berated Obama as the creator of outsourcing by doing away with made-in-America light bulbs. “Now they all come from China”, she said. The Tea Party faithful come well stocked with their deflecting, all-purpose ripostes. “Take that”, they say, as they lob another one. Obama’s a Muslim. He wasn’t born hereSolyndra is the tax and spend symbol of everything that’s wrong with the Obama Administration. Look what he’s done to gas prices. They aim to keep the heat turned up. “We have a President who genuinely does not believe in America”, another woman finally laments. To say that the first African-American President elected by an overwhelming margin in an America that looked poised for a national Renaissance, doesn’t believe in America is, of course, absurd. He is the American Dream, folks, just not the one you might have imagined. As true liberal agenda goes, President Obama’s position is slight. Still, the conservative rabble hates hearing any of it from a black guy.

But what seemed clear was that whether you were Scalia or one of the voices on the street, there was no shortage of cheap thinking being applied to the debate at hand. Two years after passage of the Affordable Care Act, nothing about the nature of the debate has changed. The back and forth was as tiresome, shrill and cacophonous as ever.  We might as well still be shouting about death panels.  Now, part of the debate has slid into a tangential dust up between those two hot button issues: broccoli and light bulbs. And it’s only day one.

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