From Special Report with Bret Baier | Tuesday, March 27, 2012
On Supreme Court oral arguments, heard yesterday, on the constitutionality of health care reform’s individual mandate:
If you had left after the first hour, when the Obama solicitor general was being whipsawed and didn’t have very good answers, you would have thought it was all over but the shouting — and that Obamacare was not going to survive. And it was a rough hour for Obama’s side.
But I think it was somewhat of a change in tone at the end of the second hour from Justice Kennedy, who essentially is the reigning monarch of the United States. He’ll decide one way or the other what our future is going to be and what our constitution is going to look like — again.
The [justices'] questions don’t really tell you for sure which way they are going to go. But he raised the question as to whether there is something unique about the health care market that would allow for a unique health care mandate. And I think if he is the one who joins with the liberals in upholding Obamacare, it will probably be on those kinds of grounds.
The other outside chance is… the chief justice. I think he, as a conservative, is instinctively inclined against judicial activism, which is generally the practice of the left, for example on abortion, overturning the laws in 50 states with one act of will on the part of the Supreme Court. There is some hesitation on his part, I think, for the court to act [against Obamacare], particularly if it’s a one vote majority to overturn a law as broad, sweeping, and important as Obamacare, particularly since it was debated for almost a year-and- a-half and in the end passed the Congress and got the signature of the president….
There is an outside chance of him being a defector on this simply on the grounds of not (a) appearing to be a judicial activist and (b) in some way, I think, eroding the legitimacy of the court as an arbiter that leaves legislation generally alone.
On the ongoing national outrage over the shooting death of 17-year-old Trayvon Martin:
There has been [heated rhetoric], and it’s been done in the absence of evidence.
We don’t know all the facts of the story. We know some of them. But the ones we don’t know are quite crucial.
We know, for example, that George Zimmerman, the alleged shooter, was following the young man, Trayvon Martin. We also know that at a later point there was a fight and one eyewitness, who has spoken in public, who says he was on the scene, says at that point Trayvon was on top of Zimmerman and hitting him. Zimmerman’s lawyer says he had his nose broken and injuries on the back of his head. That’s something he wouldn’t say if it weren’t so because it can be easily checked. So we know that Martin was being followed, and we hear that at another point he was on top and he was hitting Zimmerman.
The question is what happened in between? Had Zimmerman retired to his car and turned around, or was he still in pursuit? And I think everything hinges on that. And until we know it, we don’t know how blameworthy Zimmerman is to be on this issue, although clearly he started all this by tracking, following a young man, who at the time, from all the evidence, wasn’t engaged in anything.