No "embarrassment" here. Former New York Times Supreme Court reporter Linda Greenhouse, last spotted (before the Supreme Court's arguments on Obama-care) calling skeptics of the law's constitutionality "simply wrong," was defiant in her online column Wednesday, even after the administration's case fell embarrassingly flat. In "'Embarrass the Future? [1]'"(the headline is a quote from Chief Justice John Roberts on the Court's controversial "strip-search" decision) she still thinks Obama-care will prevail.
Greenhouse gathered much mockery for her column two weeks ago [2] calling Obama-care opponents "simply wrong" in their belief that the legislation is unconstitutional, their case "rhetorically powerful but analytically so weak that it dissolves on close inspection."
Nothing in the Supreme Court arguments in the health care case last week, or in the subsequent commentary, has changed my opinion that this is an easy case. It’s the court that made it look hard.
I don’t mean the torrent of wisecracks at the government lawyers’ expense from Justice Antonin Scalia, who despite his clownish behavior in channeling the Tea Party from the bench is surely smart enough to know the difference between broccoli and health care. Rather, I mean the tough but fair questions from the members of the court who actually seemed to be wrestling with the issues: Justices Anthony M. Kennedy and Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. The Affordable Care Act will be upheld if least one of these justices is satisfied that the briefs, the arguments, and his own judicial perspective provide sufficient answers to the questions.
By the end of the arguments, Chief Justice Roberts and, to a lesser extent, Justice Kennedy were heading in that direction, it seemed to me. While they might have initially seen the government’s defense of the law as a slippery slope, leading from hospital emergency rooms to the vegetable bin, they appeared increasingly concerned by the implications of the plaintiffs’ arguments as well. They seemed particularly alarmed by the categorical position put forward by Michael A. Carvin, the lawyer representing the small-business plaintiffs, who argued that a victory for the government would mean that Congress could “regulate every human activity from cradle to grave.”