on July 2nd, 2012 1 Comment
Well, that was interesting.
I’m in Berlin, on vacation, but at 4:00 PM [Thursday] turned on a television (to CNN International) to see what the Court would say. The word came down soon – the mandate is unconstitutional. Then, the mandate may be constitutional. Then, the mandate is constitutional. There followed some similar confusion about the Medicaid expansion – the Court held that it was constitutional but might be applied unconstitutionally, then that it was unconstitutional, and then that it was unconstitutional but the unconstitutionality was easily cured.
Even an hour after the case was announced, CNN’s Chief Legal Correspondent, Jeffrey Toobin, got the Medicaid part wrong, stating that the Court held Medicaid expansion unconstitutional without noting that it held the expansion could go ahead, albeit with a smaller stick. While he was talking, I kept waiting for him to apologize for announcing definitively, immediately after the oral argument, that “Obamacare is dead.” I’m still waiting. To see my own (partial) confession of error in a much less confident prediction (as well as a bit of crowing about something I got right), you’ll have to read to the end of this post.
So, first lesson from this decision: the press is really bad at reading Supreme Court decisions. We already knew that, but this was a particularly egregious example, at least on CNN. For future reference, if you are really interested in good and often fast legal analysis, check out SCOTUSblog. That’s where I got my first accurate take on the decision. It also gave me a link that allowed me to download the decision, complete with four separate opinions. You can get that, too, either directly from the Supreme Court’s webpage or, usually, from a link in a SCOTUSblog post on a decision.
But you don’t have to, if you don’t want to. I’ve now read – or at least skimmed – the 193 pages of syllabus plus opinion and am prepared to tell you what they mean, at least as a legal matter. I’m not prepared to guarantee I’m right, but I will promise to be better than CNN’s first hour of coverage – and a lot shorter than the Justices.