# Handicap PPACA/Obamcare in the SCOTUS **URL:** \ **Category:** Great Debates\ **Created:** [February 5, 2011, 8:09pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306 "2011-02-05T20:09:25Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Typo\_Knig](https://avatars.discourse-cdn.com/v4/letter/t/cdc98d/32.png) [@Typo\_Knig](https://boards.straightdope.com/u/Typo_Knig)\ **Post date:** [February 5, 2011, 8:09pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/1 "2011-02-05T20:09:25Z")
The Patient Protection and Affordable Care Act, or “Obamacare” is headed for the Supreme Court. See [Wikipedia](http://en.wikipedia.org/wiki/Patient_Protection_and_Affordable_Care_Act), and SDMB threads [thread=595325]Another Strike [in the courts against HealthCare Reform law][/thread] and [thread=593015]Majority of States Now Challenging Health Care Law[/thread], among others I’m sure. Two Federal judges have said PPACA is constitutional, two others said it isn’t. Ultimately this will have to be settled by the SCOTUS. Whichever way five justices vote will determine the constitutionality of the PPACA. The late Justice William Brennan called this the “rule of five”. Fellow Dopers, what is your take on PPACA/Obamacare’s constitutionality as decided by the present SCOTUS? I’m not much of a court watcher - I had to look up who the current justices are - but here’s my guess: Constitutional: Breyer, Ginsberg, Kagan, Sotomayor Unconstitutional: Alito, Roberts, Scalia, Thomas Does it all come down to Kennedy? Opinions? ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [February 5, 2011, 8:39pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/2 "2011-02-05T20:39:30Z")
As I said in one of the other threads, this has to be the most bizarrely inefficient things I’ve ever seen. It will almost certainly come down to what Kennedy thinks, and he’s almost certainly already made up his mind on the subject. The thing could be decided today if someone just called him up and asked him. But instead, we’ll spend many thousands of man-hours and what I can only imagine is millions of dollars to have this wind its way through the courts, just to get to a place where Kennedy can give us a yes or no. Its like a Rube Goldberg machine for finding the opinion of one old man. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 5, 2011, 9:54pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/3 "2011-02-05T21:54:20Z")
Agreed. All on Kennedy. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 5, 2011, 10:13pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/4 "2011-02-05T22:13:35Z")
Is it pronounced Pee-PAH-Cah? Sounds like a relative of Chewbaca. I wouldn’t be too sure about Scalia or Roberts voting “un”. I could see them going either way, depending on how important they think the existing case law is. Thomas seems to have no regard for _stare decisis_, so he’ll vote “un”. Alito is probably still pissed about the reaction to his head shaking at the SotU last year, so he’ll dump on it. Kennedy, I don’t know. The other 4 will be fine with it. ---
**Author:** ![Knorf](https://avatars.discourse-cdn.com/v4/letter/k/58956e/32.png) [@Knorf](https://boards.straightdope.com/u/Knorf)\ **Post date:** [February 5, 2011, 10:30pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/5 "2011-02-05T22:30:28Z")
It’ll be decided for purely partisan reasons having little to do with any real thought about constitutionality. I don’t trust our SCOTUS to be non-partisan in the least. I expect a lot of insincere posturing, little or no real thought about constitutionality, and ultimately partisan votes. And since the SCOTUS is mostly favoring the GOP these days on partisan topics, I think the sane money has to be on it be overturned. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [February 6, 2011, 1:06am UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/6 "2011-02-06T01:06:50Z")
Disagree. Fifty fifty, Kennedy, Scalia. Scalia sometimes gets weird. Other than that… can’t say. The court can, will, and has, thrown out anything they want to bullshit the result they want. ---
**Author:** ![China\_Guy](https://avatars.discourse-cdn.com/v4/letter/c/779978/32.png) [@China\_Guy](https://boards.straightdope.com/u/China_Guy)\ **Post date:** [February 6, 2011, 2:01am UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/7 "2011-02-06T02:01:38Z")
Maybe Thomas will recuse himself? Bwahahahaha ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 6, 2011, 2:48am UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/8 "2011-02-06T02:48:35Z")
> [@China\_Guy](#): > > Maybe Thomas will recuse himself? Bwahahahaha Why would he need to? ---
**Author:** ![China\_Guy](https://avatars.discourse-cdn.com/v4/letter/c/779978/32.png) [@China\_Guy](https://boards.straightdope.com/u/China_Guy)\ **Post date:** [February 6, 2011, 3:18am UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/9 "2011-02-06T03:18:32Z")
His wife and perhaps ties to the Koch Brothers. Here’s [two](http://abcnews.go.com/Politics/Supreme_Court/justice-clarence-thomas-amends-financial-disclosure-reports-virginia/story?id=12750650)[stories](http://abcnews.go.com/Politics/controversy-virginia-thomas-website-pulls-memo-health-reform/story?id=11937027)on his wife and there’s a lot more out there. Long story short, Thomas did not disclose his wife’s employment for decades including her fund raising for the Tea Party and potentially being involved with “repeal Obama-care” posturings. Thomas allegedly attendedly had all expenses paid to speak at [Koch brothers](http://www.huffingtonpost.com/brian-ross/big-brothers-are-watching_b_770909.html)retreats. If the above allegations are true, and I expect that the mainstream media will do some reasonably well researched investigative reporting, then it calls into question Thomas’ impartiality. ---
**Author:** ![davidm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/davidm/32/225_2.png) [@davidm](https://boards.straightdope.com/u/davidm)\ **Post date:** [February 6, 2011, 3:54am UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/10 "2011-02-06T03:54:09Z")
Suppose Thomas were to recuse himself? (I know, icebergs in hell etc., but for the sake of argument.) If the remaining court were to split 4/4 what happens? Does the most recent lower court opinion stand? Do they flip a coin? ---
**Author:** ![Typo\_Knig](https://avatars.discourse-cdn.com/v4/letter/t/cdc98d/32.png) [@Typo\_Knig](https://boards.straightdope.com/u/Typo_Knig)\ **Post date:** [February 6, 2011, 3:57am UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/11 "2011-02-06T03:57:43Z")
> [@China\_Guy](#): > > His wife and perhaps ties to the Koch Brothers. Here’s [two](http://abcnews.go.com/Politics/Supreme_Court/justice-clarence-thomas-amends-financial-disclosure-reports-virginia/story?id=12750650)[stories](http://abcnews.go.com/Politics/controversy-virginia-thomas-website-pulls-memo-health-reform/story?id=11937027)on his wife and there’s a lot more out there. Long story short, Thomas did not disclose his wife’s employment for decades including her fund raising for the Tea Party and potentially being involved with “repeal Obama-care” posturings. > > Thomas allegedly attendedly had all expenses paid to speak at [Koch brothers](http://www.huffingtonpost.com/brian-ross/big-brothers-are-watching_b_770909.html)retreats. > > If the above allegations are true, and I expect that the mainstream media will do some reasonably well researched investigative reporting, then it calls into question Thomas’ impartiality. In case that last sentence is not deadpan humor, I say Welcome to the 21st century. Jon Stewart will play videos of the proof, he’ll make a few jokes and faces, and then Mr. Justice Thomas will go right ahead and do whatever the frack he wants to. The mainstream media will keep reporting on Lindsey Lohan’s kleptomania, or something of equal import, and not mention the SCOTUS at all. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2011, 4:22am UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/12 "2011-02-06T04:22:42Z")
Suppose Thomas were to say something like: > [@](#): > > My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female. > > My position is the same in the specific case of a spouse whose views are expressed in the capacity of an officer, director, or manager of a public interest or advocacy organization that takes positions or supports legislation or litigation or other actions of local, state, or national importance. > > Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between > spouses. When I joined this court in 1980 . . . the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage–that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say “spouses” than “wives” …). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so. In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept Proponents’ position that my impartiality might reasonably be questioned under § 455(a) because of her opinions or the views of the organization she heads. Would anyone here find that persuasive? ---
**Author:** ![davidm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/davidm/32/225_2.png) [@davidm](https://boards.straightdope.com/u/davidm)\ **Post date:** [February 6, 2011, 4:56am UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/13 "2011-02-06T04:56:42Z")
Bricker, Correct me if I’m wrong (and I very well may be), but I don’t think there have been any accusations that Judge Reinhardt’s wife has profited from his rulings. I believe that’s the claim, justified or not, that’s being made against Justice Thomas. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [February 6, 2011, 12:07pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/14 "2011-02-06T12:07:58Z")
To be brutally honest, no. Thank you for the lovely quote, Bricker, but it’s been made reasonably clear recently that the Supreme Court’s ethics rules can be flouted at will and whim. I’d much rather hear Thomas use his _own_ words, rather than copying someone else. On the other hand, I think it’s much more likely he’ll either borrow those, or just not say a damn thing. Probably won’t even say a damn thing. Why do you think him saying that would be persuasive? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 6, 2011, 2:27pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/15 "2011-02-06T14:27:27Z")
> [@China\_Guy](#): > > His wife and perhaps ties to the Koch Brothers. Here’s [two](http://abcnews.go.com/Politics/Supreme_Court/justice-clarence-thomas-amends-financial-disclosure-reports-virginia/story?id=12750650)[stories](http://abcnews.go.com/Politics/controversy-virginia-thomas-website-pulls-memo-health-reform/story?id=11937027)on his wife and there’s a lot more out there. Long story short, Thomas did not disclose his wife’s employment for decades including her fund raising for the Tea Party and potentially being involved with “repeal Obama-care” posturings. > > Thomas allegedly attendedly had all expenses paid to speak at [Koch brothers](http://www.huffingtonpost.com/brian-ross/big-brothers-are-watching_b_770909.html)retreats. > > If the above allegations are true, and I expect that the mainstream media will do some reasonably well researched investigative reporting, then it calls into question Thomas’ impartiality. From your second cite: > [@](#): > > Experts in judicial ethics have been careful to say that even though Virginia Thomas is perhaps the most politically active Supreme Court spouse in history she is entitled to have her opinions and it is up to Justice Thomas make sure there is no conflict of interest. > > \ > > But Jason Mazzone, professor of law at Brooklyn Law School, discounts connections between the ruling and Liberty Central. In a recent blog on the popular website Balkinization he wrote: > > "Every organization is governed by background legal rules (including constitutional rulings from the Supreme Court) that facilitate and limit the organization’s activity. Liberty Central is no more the beneficiary of Citizens United than are the many thousands of other organizations that might wish to run political ads. Virginia Phillips is no more a beneficiary than are the millions of other Americans whose organizational activities are now less constrained by federal statutory law. " And your third cite doesn’t say what you say it does. I don’t see any reason he needs to recuse himself. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2011, 3:00pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/16 "2011-02-06T15:00:02Z")
> [@davidm](#): > > Bricker, > Correct me if I’m wrong (and I very well may be), but I don’t think there have been any accusations that Judge Reinhardt’s wife has profited from his rulings. I believe that’s the claim, justified or not, that’s being made against Justice Thomas. Not. As **John Mace** ’s excerpt correctly observes, “Liberty Central is no more the beneficiary of Citizens United than are the many thousands of other organizations that might wish to run political ads.” The ACLU’s work for same-sex marriage is much more tied to Reinhardt’s ruling than Liberty Central was tied to the issue in Citizens’ United. And as ACLU Director, a “win” for Reinhardt’s wife is a more concrete victory than a win in Citizens United would be for Thomas’ wife. You cannot claim that Thomas has a conflict of interest requiring recusal without also claiming that Reinhardt has a conflict of interest requiring recusal. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 6, 2011, 3:23pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/17 "2011-02-06T15:23:23Z")
> [@Bricker](#): > > Suppose Thomas were to say something like: > .. > Would anyone here find that persuasive? Why would it? He’s claiming his wife’s views, political activism, and, for that matter, source of income have no influence on his own. To accept that, you’d have to accept his claim that, in effect, his is a marriage in name only. Maybe it is, but that is not evidence here and cannot honorably be the default assumption. Note, btw, that Orrin Hatch has stated that Kagan recuse on the basis of her having maybe heard the case discussed once or twice when Solicitor General. His motives for saying so are as transparent as his motives, and I dare say yours, for not suggesting Thomas do likewise despite a far greater and closer unobjectivity. Now, why do you feel compelled to appoint yourself a pro bono counsel here for every Republican who gets criticism? Isn’t this board supposed to be about fighting ignorance, not advocacy? :dubious: ---
**Author:** ![davidm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/davidm/32/225_2.png) [@davidm](https://boards.straightdope.com/u/davidm)\ **Post date:** [February 6, 2011, 4:45pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/18 "2011-02-06T16:45:14Z")
I don’t understand why it’s relevant that thousands (or millions, for that matter) of other organizations have also benefited. Conflict of interest (if it exists) is what it is regardless of who else has benefited. Also, the idea that Reinhardt’s ruling is “more closely tied” doesn’t really strike me as relevant. The question, as I understand it, is whether or not a judge’s wife has profited in some material way. It can be argued that Citizens United opened up more business opportunities for Thomas’ wife. I’m not aware of any material benefit for Reinhardt’s wife. Now, to be fair, I personally think Thomas would have ruled as he did regardless of his wife’s vocation. It would have been shocking if he had broken from the conservative wing of the court. But I don’t think intent is relevant to conflict of interest, is it? ---
**Author:** ![China\_Guy](https://avatars.discourse-cdn.com/v4/letter/c/779978/32.png) [@China\_Guy](https://boards.straightdope.com/u/China_Guy)\ **Post date:** [February 6, 2011, 5:01pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/19 "2011-02-06T17:01:34Z")
Call me crazy, but I think that the supreme court justices of the US of A should hold themselves and be held to the highest level of propriety. Lifetime appointment was designed to shield the Justices from blatant political pressure. IMHO, it comes with the territory that spouses/partners even close relatives should not do things that call into question the impartiality of a Supreme Court justice. The risk of a conflict of interest or appearance thereof is great. Elected officials that put their personal wealth into blind trusts, Presidental spouses are expected to adopt worthy yet non partisan causes to champion, etc. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 6, 2011, 5:15pm UTC](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306/20 "2011-02-06T17:15:59Z")
I wonder if Kagan will sit out the health care case? [Next page](https://boards.straightdope.com/t/handicap-ppaca-obamcare-in-the-scotus/570306.md?page=2)