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“After months of anticipation, thousands of pages of briefs and more than six hours of arguments, the justices will vote on the fate of President Barack Obama\u2019s health care overhaul in under an hour Friday morning. They will meet in a wood-paneled conference room on the court\u2019s main floor. No one else will be present.” You know, folks, it is hilarious and it\u2019s pathetic how the media are all aflutter about how the court is gonna vote on Obamacare today and then not announce their ruling \u2019til the end of June. It\u2019s not fair. It just isn\u2019t right. They know and we don\u2019t. We have to wait until June. <\/p>\n
So they\u2019re hunting around here, they\u2019re hoping and praying for leaks. If you know how to read between the lines of these liberal media news stories, as I do, you can see that they\u2019re mining for leaks here. They\u2019re asking clerks to let them know how it turns out. Here\u2019s what\u2019s going on today. This is the procedure, as it has been for 222 years. The nine justices will gather in this room and they will vote, and it\u2019s only them. There is nobody else in the room. There are no clerks. There are no secretaries. The most junior justice, who is Elena Kagan<\/a>, takes the notes of the meeting. She is the note taker. She records what happens here. There\u2019s no secretaries; no executive assistants. There\u2019s no iPhone in there with Siri. There are no clerks. If somebody wants a cup of coffee, Elena Kagan goes and gets it. That\u2019s common, too. The most junior justice does the grunt work like that. It\u2019s traditional, and it\u2019s always happened. <\/p>\n They will vote. Opinions will be assigned. There might be a little discussion going around the room as the justices explain things that are important to them, noteworthy, but there\u2019s very little persuasion, if any, that goes on here. It remains entirely civil and collegial. Do not erupt in arguments. The arguments and the dissents and the disagreements occur in writing. The vote that is held today is not final because, after the opinions have been assigned and written, it\u2019s not likely, but it has happened — in fact, it happened with Justice Kennedy in a fairly recent case, changed his original vote after reading opinions from the other justices. That could happen here. <\/p>\n So the vote today is subject to change, and the really fascinating thing about what\u2019s going on today is the vote itself and what happens as a result of it. And there is a theory that is floating around out there that I want to share with you. I\u2019m gonna take the break here and I\u2019m gonna share with you this theory, and as a little bit of a tease, I\u2019ll tell you this about it. The theory is how the vote gets to 6-3 for total constitutionality. That\u2019s the theory. How they get there is what\u2019s fascinating.<\/p>\n BREAK TRANSCRIPT<\/p>\n RUSH: I\u2019m not saying this is going to happen, by the way. The fact that it\u2019s so widely being predicted now, if it becomes conventional wisdom it could very well be like most conventional wisdom, and that is wrong. There\u2019s a very, very left-wing blog called the SCOTUS blog, and the guy there is predicting 6-3 for the whole thing being found constitutional, 6-3. A lot of others have looked at his reasoning, “Yeah, you know what, I like that reasoning, it makes perfect sense to me. I think I\u2019ll sign on to that.” If it happens, and if it happens the way the theory explains it, we don\u2019t have a court looking at the law anymore. We have a fully politicized third branch of government. <\/p>\n So here goes. The chief justice, John Roberts, gets to decide who should write the opinion when he is in the majority. He assigns it. This theory holds that he\u2019ll write it himself. But before we get there, let\u2019s review where we are. Anthony Kennedy made it clear for all this talk about a plane wreck and a train wreck, if you read the transcripts all the way through, and we played the sound bites of Kennedy on both sides of this, Anthony Kennedy was open, made it very clear, he was open to the idea that the mandate is constitutional. Remember his phrase, “You have a heavy burden to prove here<\/a>.” <\/p>\n If the government, in his mind, has made the case that this law is necessary and proper, he\u2019s indicated he could find the whole thing constitutional. He also appears open to the idea that this whole business that the commerce clause says you can\u2019t force people to buy something, the way that got dissected and explained in a way to make people think, well, wait a minute here, maybe we could say that it\u2019s constitutional to require everybody to buy health insurance because the fact is that the market already exists. People are already buying health insurance. It\u2019s not a new market the government\u2019s creating. If it were a new market they were creating, that would be a slam dunk, no way is that constitutional. But the out is, the market\u2019s already there. The government\u2019s not creating anything. <\/p>\n So the point of these two bits of analysis is to suggest that Roberts and Kennedy could be with the four liberals in finding the whole thing constitutional. The idea that this legislation is so important, so transformative that a 5-4 decision is not desirable by the chief and by a lot of people, that it would roil the country. A 5-4 decision is too narrow if they\u2019re gonna find the bill unconstitutional. Because, you see, theoretically the Supreme Court hates — theoretically — hates telling Congress that what it\u2019s doing is illegal. They hate intruding on this. They are always balanced on the side that whatever happens in Congress is fine and dandy, and it has to be a real breach before they move in and take it away from \u2019em. And if they\u2019re gonna move in and take it away from them and declare what Congress did illegal and against the law and constitutional, they don\u2019t want to do that with a 5-4 decision. <\/p>\n That\u2019s what this theory holds. I\u2019m not telling you I subscribe to this. But if that part of the theory is accurate, what\u2019s that tell us? It tells us that the court\u2019s worried about its reputation more than getting the law right. It\u2019s worried more about what people are gonna think of \u2019em. They\u2019re worried more about how it might roil the population, 5-4. We need 6-3 and we need 7-2 on this. So how do you get there? The theory is that Kennedy will go ahead and join the libs and make it 5-4 for total constitutionality, because he signaled that. Then Roberts, after having seen that, knows he can\u2019t stop it, so he joins the majority to make it 6-3 so that he gets to write the opinion. And in writing the opinion, Roberts will then limit the scope of the Obamacare bill to something like, yes, Congress can force us to buy health insurance, but nothing else. <\/p>\n Now, this theory also requires that you believe Roberts signaled during oral arguments that he could find a way to find this whole thing constitutional. That he didn\u2019t seem anywhere near as opposed to this as Scalia was, for example. So if he crosses over with Kennedy and joins the libs and it\u2019s 6-3, he writes the majority opinion, and he makes it as narrow as possible so that, yeah, they can force us to buy health insurance, but they can\u2019t make us buy anything else. That won\u2019t hold up by the way. Nobody\u2019s gonna remember a limiting principle in this. They\u2019re gonna remember, if this happens, it was 6-3, or 7-2 for total constitutionality, and that\u2019s it. But that\u2019s how this theory goes. As I tell you, this requires you believe the court cares not about the law, but rather about other things. <\/p>\n BREAK TRANSCRIPT<\/p>\n RUSH: Now, the theory that I just gave you comes from SCOTUS blog. It\u2019s run by a very left-leaning guy. A lot of people who are not liberals have run across this theory and it appeals to them. It\u2019s slowly but surely behind the scenes becoming conventional wisdom, and of course the left is glomming onto this, \u2019cause they love this possibility. They\u2019re fantasizing here, almost. I mean they are dreaming of a 6-3 decision where the chief is in the majority and writes the opinion. They can\u2019t have a better day than that, other than if it went 7-2. And it could go 7-2. <\/p>\n What this theory relies on is justices, particularly the chief, doing two things: caring more about what is thought of the court at the end of this, in terms of its reputation. The theory relies on the justices being very upset with all these recent 5-4 decisions, that that\u2019s too narrow. We have something this momentous, and it is, this will forever — I forget which justice said it. This forever changes the relationship between citizen and government. This is it. I mean this changes the whole notion of the Constitution, that limits government. This wipes that out. <\/p>\n That\u2019s what frustrates me about this, the fact that most people talking about this don\u2019t get the severity of what we face is. Because in the real world, there\u2019s no way this law is constitutional. I don\u2019t say that as a partisan. In a just and sane, objective world, this would be a slam dunk struck down nine to nothing. It should at least be 7-2 unconstitutional and throw the whole thing out. But the theory that seems to be the popular one relies on nothing having to do with the law. Nothing. It has to do with positioning, court reputation, not causing riots in the streets at the end of the day when the decision is announced. <\/p>\n BREAK TRANSCRIPT<\/p>\n RUSH: Now, don\u2019t worry too much about this theory, folks. The theory is becoming conventional wisdom and that means it\u2019s irrelevant and is wrong. It\u2019s advanced by the left. And, by the way, here\u2019s a quote from Senator Richard Blumenthal, former attorney general Connecticut, now Senator from Connecticut. The left is playing this “you will ruin your reputation” card. That\u2019s what this theory is about, the theory that justices will see it. They\u2019re trying to intimidate the court into ruling in favor of Obamacare. Blumenthal said, “The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statute of this magnitude and importance, and stretches so dramatically and drastically to do it.”<\/p>\n So you guys on the court, you people on the court, you are going to destroy the court and your credibility and people won\u2019t obey if you do the right thing here and find this constitutional. So the effort to intimidate is under full swing.<\/p>\n","protected":false},"excerpt":{"rendered":" RUSH: Let\u2019s talk about the Supreme Court. I am fascinated to watch the media, folks. What is happening today at the United States Supreme Court is what has happened for 222 years. There\u2019s nothing special about today. There\u2019s nothing unique. The court is doing nothing today that it hasn\u2019t done since its inception. But if […]<\/p>\n","protected":false},"author":14,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","ngg_post_thumbnail":0},"categories":[],"tags":[],"yoast_head":"\n![](\"https:\/\/live-rush-limbaugh.pantheonsite.io\/wp-content\/uploads\/SupremeCourtJustices.jpg\"\/)
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<\/a>What troubles me about the theory is that has to be totally discarded. The law, the Constitution <\/a>has to be totally discarded all because the court is going to be worried about a margin of defeat. Like if Kennedy goes the other way, 5-4, the same theory holds that Roberts will then join that side to make it 6-3 unconstitutional. So it still is about Kennedy here, in this theory. And that\u2019s all this is. Just a theory. But what made me want to explain it to you is that it\u2019s out there and that a lot of people on the right find it appealing. Those people, too, who find it appealing are frustrating to me because they are looking at this, like I said earlier this week, this is just another fun intellectual exercise to \u2019em. We\u2019re here in the classroom and we\u2019re debating political science. We are trying to be the smartest people in the room, to figure out exactly what the court\u2019s gonna do within our own political constraints.<\/p>\n