Jeffrey Toobin on the Health Care Reform Law and the Supreme Court

Wednesday, April 11, 2012

New Yorker staff writer and CNN senior legal analyst Jeffrey Toobin discusses the health care reform law in the Supreme Court. He's the author of the 2007 book The Nine: Inside the Secret World of the Supreme Court. His latest book, The Oath: The Obama White House. The Supreme Court, will be published in September by Doubleday.


Jeffrey Toobin

Comments [40]

mc from Brooklyn

dboy: you are picking and choosing what you read. That is your right, but, the big money in health care is being spent on the health care, not the insurance. If you just want to rail against bad ol' insurance companies because you don't like them that's fine. But you could get rid of them tomorrow and it would still not solve the big problem.

Apr. 11 2012 04:22 PM

mc from Brooklyn ~

"dboy: the US spends more and gets less because of the way health care is delivered and paid for."

Are you even reading your own writing???

What do you think the trillion $, for-profit health "insurance®" industry does??


Apr. 11 2012 02:18 PM

mc from Brooklyn ~

Let me clarify:

Profiting from peoples ill health and holding innocent people hostage whilst extorting money and NOT providing promised care is MORALLY bankrupt and thoroughly reprehensible.

Despite this, the USA® clings to the least efficient, most expensive and highest profit-margin system in the ENTIRE developed world.

If you're rich enough to game this system or your salary depends on it - more power to ya!

Apr. 11 2012 02:12 PM
John A.

What if The USGov did this one thing: mandate that all health care charges be published? The press could report on hospital vs hospital, procedure v procedure. Voters would clamor for some Gov cost controls.

Apr. 11 2012 01:57 PM
Don't pay Supreme Court's Salaries from see how they like not having insurance.

If the Supreme Court repeals the Healthcare law they will
be killing and causing unnecessary pain and suffering to
100,000s of innocent American Citizens.
These victims will be a direct, known and predictable effect
of their decision.

The Supreme Court members are not elected. By acting as rank and file Republicans, the conservative Supreme Court members will have decided to act as political tyrants and will have decided to destroy the legitimate balance of power between the judiciary and the elected branches of government. This harm and destruction is treason. Their other
decisions (Citizen's United) which indirectly allow foreign enemy powers
to legally bribe Congress and heavily influence the course of elections
through unlimited financial donations is also treason - it has the
direct effect of undermining and corrupting the U.S. to the benefit
of its enemies.

If the Supreme Court members decide to usurp legislative and executive power by destroying the healthcare law under pretext, the Executive branch should use the FULL EXTENT OF ITS POWERS to make sure that the outcomes for the infringing tyrants are palpably bad and to set a strong precident which will be remembered for generations to deter future inJustices from
abusing their office.

For a start, the Executive Branch should BLOCK the payment of the
conservative judges' salaries and their HEALTH INSURANCE.
(While you're at it, why not Strip Search them for a
mistaken traffic offence).

The fastest way to make a conservative think is to let them
experience poverty and injustice first hand. (Naturally, these tyrants
will probably just make it legal to bribe members of the Supreme Court as "free speech".)

At a minimum, the public admission by one of the conservative SC
should constitute public admission of deriliction of duty and constitute
"bad behavior" suitable for removal from office and non-payment of
salary and benefits.

Apr. 11 2012 01:57 PM

"The Federalism problem notwithstanding, automobile insurance would resemble the ACA ("Obamacare") if all persons who might conceivably use the public highways or roads in their lifetime, for any reason, had to buy "insurance" to cover the costs that could arise in connection with the public's use of the roads and highways.
Apr. 11 2012 12:31 PM"

O.K., that is meaninglessly cryptic.
By "all persons who might conceivably use the public highways and roads", I mean that the mandate to buy car insurance to pay for all expenses(catastrophic collisions and every-day care and maintenance) should extend not only to present and future car owners, but present and future car passengers as well; pedestrians and bicyclists; persons who drive delivery vehicles and persons who receive goods requiring transport on the public roads and highways.

Apr. 11 2012 01:32 PM

dboy says:


Which is almost the correct framing of what the free-loading polity is yearning for (and their prevaricating political leaders have falsely promised is possible) .

What they really want is "affordable" healthcare, which ultimately turns into "no cost to me" services, rather than shared "actuarial" risk financing for treatment needed for unpredictable, catastrophic health crises that was the traditional goal of the health insurance industry.

The upper and upper-middle classes retain the most wealth under the current systems and the soon-to-be-unconstitutional reforms which were little more than elaborately government bailouts of the insurance/medical industry complex. (e.g., One of the most popular, organized and long-standing cost-shifting legal scams is the careful estate planning tactics that shelter accumulated wealth while its owners prepare to live out their last - and arguably most medically expensive - days on the medicaid rolls.
There are no free lunches.

Apr. 11 2012 01:07 PM
Tim Young from New York, NY

Obama 2012!

Apr. 11 2012 01:03 PM
mc from Brooklyn

No, dboy, the point is that insurance companies are beside the point.

Apr. 11 2012 01:00 PM


I already explained my rationale for the flip-flop -- partisan score-keeping. Had this been the first time that a political party put their own winning record above sound governance, perhaps I could find some validity to the race card. But, clearly, this is not the first President to be stymied by congressional glory seekers.

On the topic of uncovering racism in Congress, you might make make more progress questioning the need for formally recognized caucuses defined by skin color.

Apr. 11 2012 12:52 PM
Jack Jackson from Central New Jersey

The Supreme Court - and in particular the power to name the next two justices to sit upon it - are the most important sequelae of the next Presidential election and a lot of the reason why I will be voting for Obama.

The GOP are a bunch of dangerous liars. (IMHO)

The republic I envision: Equality of opportunity, public campaign financing, reduced military budget, healthcare for all, increased representation in the House, steeply progressive income tax rates, elimination or reduction of ALL tax credits and deductions, equal treatment of savings and dividend income, gay marriage rights, and so on, are not ACHIEVABLE unless the SCOTUS more closely reflects the population. And THAT won't happen if a Republican names the nominees.

Apr. 11 2012 12:50 PM

mc from Brooklyn ~

The point being, the for-profit health "insurance®" system does NOT function.

Apr. 11 2012 12:49 PM
mc from Brooklyn

dboy: the US spends more and gets less because of the way health care is delivered and paid for. Yes, for profit insurance piles on, but the amounts are piddling compared to the amounts spent on the actual care. While it is unpleasant to see million dollar salaries going to CEOs, we are talking about billions that are wasted in inefficient care. Luckily docs and medical practices are getting hip to this. By the way, France, home of the WHO highest rated system does NOT have single payer. Neither does Germany, Switzerland or Japan. All have universal coverage. If we don't figure out how to not do redundant and unnecessary care it won't matter how we pay the bills--it will consume all resources.

Apr. 11 2012 12:40 PM
Michael D.D. White from Brooklyn Heights

The court's decisions about what powers the government should and shouldn't have (strip searches vs. regulation of the health care sector of the economy)is not resulting from the court acting "conservative": The court is making decisions that are "corporatist" which is different.

Apr. 11 2012 12:40 PM

Toobin is insufferable.

Apr. 11 2012 12:38 PM

Brendan from East Village ~

Dude, do yourself a favor and look-up "federalism".

Even a Wikipedia "definition" will help you.

Apr. 11 2012 12:37 PM
DS from NJ

Wow, Toobin doesn't see anything wrong with Obama's comments re: the Supreme Court? Odd that Toobin doesn't think that Obama's statement that overturning a law would be "unprecedented" (hasn't Toobin read Marbury v. Madison?) Or the fact that Obama commented on a decision the Supreme court *might* make, before the Court has actually rendered a decision. (Also, he seems to have missed Obama's statement that the health care law passed with a "strong majority" -- LOL!)

Toobin seems more evenhanded on CNN. I guess when he's on Lopate or in The New Yorker he takes on more of the viewpoint of the medium he's appearing in.

Apr. 11 2012 12:37 PM

Polls —

Sandra Day O'Connor clearly was upset that she was seen as a political groveler following Bush v Gore.

Apr. 11 2012 12:36 PM

Jim ~

Why was the plan okay when it was the Heritage plan and NOT okay when BO adopted it??

Apr. 11 2012 12:34 PM

Almost all but the most conservative scholars of law agree that we've seen at least two of the worst SCOTUS rulings in American history in the past 15 years — Bush v. Gore and Citizens United. There's a third that is slipping my memory at the moment.

Then we have Elena Kagan and Sonia Sotomayor who are certainly not liberal, especially on civil liberties and business issues.

The American judicial system has shown almost no inclination whatsoever to challenge Bush and now Obama riding roughshod over constitutional protections on free speech, freedom from government intrusion, spying, and denial of due process.

Apr. 11 2012 12:34 PM

And who doesn't think that liberals would be trying to get this conservative-conceived health care bill, which ratifies the insurance companies (insurance for insurance companies!) who have no small part of the share in the blame for the exorbitant costs of health care, declared unconstitutional if a Republican president had passed it? I hope the conservatives win this round. Won't they effectively have taken any compromise with a tax-based single-payer system off the table if they do?

Attached to the health care bill was a rider reforming student loans that Obama praised for "eliminating the middle man." Irony!

Apr. 11 2012 12:33 PM

mc from Brooklyn ~

Here's a FACT:

The US spends MORE and gets LESS for it's healthcare dollar than any...ANY developed country with a single payer system.


Single player will cover EVERYONE for LESS money!!

The so-called "insurance®" industry siphons ENORMOUS sums of our GDP.

Ins. Co. & CEO With 2008 Total CEO Compensation:

Aetna, Ronald A. Williams: $24,300,112
Cigna, H. Edward Hanway: $12,236,740
Coventry, Dale Wolf: $9,047,469
Health Net, Jay Gellert: $4,425,355
Humana, Michael McCallister: $4,764,309
U. Health Group, Stephen J. Hemsley: $3,241,042
Wellpoint, Angela Braly: $9,844,212

DO you really feel comfortable with THIS???

People will DIE so these people can enjoy these immoral salaries!!

Apr. 11 2012 12:31 PM

The Federalism problem notwithstanding, automobile insurance would resemble the ACA ("Obamacare") if all persons who might conceivably use the public highways or roads in their lifetime, for any reason, had to buy "insurance" to cover the costs that could arise in connection with the public's use of the roads and highways.

Apr. 11 2012 12:31 PM
mc from Brooklyn

Ken, if mandate is struck down look for insurance companies to lobby, probably successfully, that the guaranteed issue and guaranteed renewal get struck as well.

Apr. 11 2012 12:28 PM


It's not racism so why stoke that fire? It's simple partisanship and pointless rivalry. Both sides hate to see the other score any points. Our government (and our citizens) have become a horde of drunken subway-series zealots.

Apr. 11 2012 12:27 PM
Michael D.D. White from Brooklyn Heights

Not only is Thomas known to favor finding the legislation unconstitutional, given his wife's employment he has a conflict of interest in that regard.

Apr. 11 2012 12:27 PM
mc from Brooklyn

The problem with the car insurance comparison is that one can choose not to own a car, thus staying out of that market. One can't really choose to stay out of the health care market because one never knows when one will need it.

Apr. 11 2012 12:25 PM

Actually, broccoli wasn't at all an apt analogy. Broccoli is a species of food. Healthcare is effectively a genus of which, say, Tylenol is a species. The better analogy would be a government mandate to buy food, which people do daily anyway, so the prospect is absurd and superfluous on its face and doesn't have the same market consequences relevant here.

Apr. 11 2012 12:24 PM

It is frightening to see the constant false comparisons (e.g. auto vs health insurance). Americans have lost the ability to govern themselves with logic.

An actuarial product designed to protect one from catastrophic loss (i.e. auto insurance) is NOT ANALOGOUS to paying mandatory shakedowns to a cartel that aims to control the access and pricing of all health-related goods and services!

Apr. 11 2012 12:24 PM
Ken from Upper West Side

Do the health insurance companies care whether the law is struck down? Will they make money either way?

Apr. 11 2012 12:23 PM
KT from Brooklyn

The idea that racism didn't affect interstate commerce is actually nutty; African-Americans ability to move through the country was seriously hampered as a direct result of not being able to eat, sleep or fuel their cars for long stretches of time.

It is precisely because of this sort of discrimination that requires that government step in because individual actors have no desire to end practices that directly impact portions of the populace.

With health care, the costs of the ill who can't afford care directly affect so many more of us in similar ways. It baffles me that this somehow isn't considered squarely within that space.

Apr. 11 2012 12:23 PM

The fact is, the conservative Heritage Foundation plan was absolutely perfect until that "dark fella" picked it up!

The obvious racism is NAUSEATING!!!

Apr. 11 2012 12:23 PM
Brendan from East Village

Although the auto insurance issue can be dismissed as being different because the states create those laws, it's still a valid comparison. People's outrage against the health law comes down to an objection to a government telling people they must have insurance. That's what the auto insurance law does. And it would be unimaginable that any one state decided to stop having an auto insurance law. So, effectively, it's a nationwide law. Same as health care.

Apr. 11 2012 12:21 PM
mc from Brooklyn

dboy: how do you propose we pay for your care? Some people think a public system, which is also insurance is "sh*t."

Apr. 11 2012 12:20 PM
Fred in Brooklyn from Brooklyn

Toobin has been wrong so many times I don't know why anyone listens to him. Wrong on OJ verdict. Wrong on Michael Jackson case. He can't get it right. Get him off NPR and back to CNN where he belongs.

Apr. 11 2012 12:20 PM


Health "Insurance™" and automobile insurance ARE NOT ANALOGOUS!!!!

Sooo, stooooopid!!!

Apr. 11 2012 12:19 PM
Michael D.D. White from Brooklyn Heights

As Paul Krugman has pointed out, if the mandate is invalidated conservatives wind up shooting themselves in the foot because the Social Security replacement program that they have advocated for decades relies on an equivalent mandate (mandated investment of your income in a brokerage account).

Apr. 11 2012 12:18 PM


Apr. 11 2012 12:17 PM


I would tend to agree with you, but why do you limit your direct criticism to the conservatives? It seems to me that Kennedy is the only rational person left on the Court.

Apr. 11 2012 12:15 PM

The SCOTUS conservatives are deeply, glaringly political. Scalia all but said that he resolved before the fact in Bush v. Gore that Bush _must_ be president.

The question must be asked whether the conservative members see themselves as taking part in this 2012 presidential campaign.

This is the worst, most basely politicized court in American history. It's quite something.

Apr. 11 2012 12:12 PM

Leave a Comment

Email addresses are required but never displayed.

Get the WNYC Morning Brief in your inbox.
We'll send you our top 5 stories every day, plus breaking news and weather.