Much is being made of Toobin's revelations about the dramatic internal political divisions and infighting within the court triggered by the CU decision (more on that later). But what I think is most politically significant in Toobin's piece is that it shows the dramatic rightward – and backward -- march of Republicanism over the last 30 years. In January 1982, Ronald Reagan famously wrote in his diary, "The press is trying to paint me as trying to undo the New Deal … I'm trying to undo the Great Society." Reagan was anxious to unravel the anti-poverty programs Lyndon Johnson pushed into place (though not Medicare), but he collaborated with House Speaker Tip O'Neill to pass payroll tax increases to stabilize Social Security for the next 50 to 60 years.

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Obama said that the court overturning Congress' healthcare reform law would be a textbook example of "judicial activism" as "conservative commentators" define it: "that an unelected group of people would somehow overturn a duly constituted and passed law." And hey, that seems like an eminently defensible and not particularly unsettling point! Conservatives made "judicial activism" into a talking point and rallying cry and defined it vaguely enough to encompass judges striking down basically any law or statute.

Marcus, though, is stopped cold.

And yet, Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”

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The U.S. Constitution, like many state constitutions, really is two constitutions in one. There is the black-letter constitution, which consists of rules about which there is little or no dispute. Most of these have to do with qualifications for representatives, like Article I, Section 3, Clause 1, as amended: “The Senate of the United States shall be composed of two Senators from each State, for six Years; and each Senator shall have one Vote.” Not a whole lot of room for interpretation there.

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It’s great that you’re deriving intellectual pleasure from debating Obamacare. I love that this theoretical dance you’re engaged in has no repercussions to you, a healthy individual. I would love to join you some evening for a spirited discussion on the pros and cons of healthcare reform. Maybe over a glass of wine? Heck -- over two or three glasses of wine. I’d love to lean forward, my arched brows furrowed, my full lips purple with the stain of a good Zinfandel, and throw out statistics and well-crafted one-liners about the plight of the uninsured, the underinsured, the sick. Those poor, poor sick.

But I can’t.

I can’t because it isn’t theoretical. I am sick. I’m so sick I can’t drink. I can’t drink and I can’t eat half the things a normal person eats and when I hear the word “Obamacare” hissed in snide derision I want to put a golf club through the windshield of the nearest Mercedes-Benz.

I’m 33 years old. I was diagnosed with an autoimmune disease called ulcerative colitis when I was 26.

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One needs to keep that distinction in mind when one reads CNN legal analyst Jeffrey Toobin’s now-notorious statement Tuesday on CNN:  “This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong. I think this law is in grave, grave trouble.”

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The severability issue presupposes that the Court is going to accept the stupid arguments against the mandate. If it does, the Court must decide how much of the rest of the statute has to be struck down as well? The answer depends on how much of it Congress would have passed had it known it could not enact the mandate. The Obama administration claims that if the Court strikes down the mandate that individuals purchase insurance, it must also invalidate the prohibition against insurers discriminating against people with preexisting conditions, and the law’s limitations on how insurers can set rates. Its opponents want to throw out the whole thing. The Court had to appoint a lawyer itself in order to hear arguments that the rest of the law could work without the mandate, because there are other mechanisms, such as subsidies, to encourage young, healthy people to buy insurance.

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As the justices debate constitutionality of the legislation, we want to know how the law is affecting regular Americans. Has the Affordable Care Act changed you or your family's healthcare experience?

Blog about it on Open Salon -- and we may feature your story on Salon.

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A lot of arguments have been made against the mandate, but we can roughly group them into two broad categories, which I’ll call 1) No Limits and 2) I Am a Rock.  No Limits claims that if the mandate is permitted, there will be no limitations on federal power. I Am a Rock claims that people have a constitutional right to some safe harbor where they and (more important) their money are immune from all federal regulation.

The No Limits argument was succinctly stated by Justice Kennedy:  “Can you create commerce in order to regulate it?” He worried that “this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.”  Roberts worried that government could force you to buy a cellphone; Alito, burial services; Scalia, broccoli.

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Behind all this is the brute fact that if the Court decides the individual mandate is an unconstitutional extension of federal authority, the entire law starts unraveling.

But with a bit of political jujitsu, the president could turn any such defeat into a victory for a single-payer healthcare system – Medicare for all.

Here’s how.

The dilemma at the heart of the new law is that it continues to depend on private health insurers, who have to make a profit or at least pay all their costs including marketing and advertising.

Yet the only way private insurers can afford to cover everyone with pre-existing health problems, as the new law requires, is to have every American buy health insurance – including young and healthier people who are unlikely to rack up large healthcare costs.

This dilemma is the product of political compromise. You’ll remember the administration couldn’t get the votes for a single-payer system such as Medicare for all. It hardly tried. Not a single Republican would even agree to a bill giving Americans the option of buying into it.

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And that’s why it is unlikely that the Court will accept Monday’s invitation to throw the whole case out on jurisdictional grounds, without ever reaching the merits. Before a court can hear any case, it has to decide whether it has the authority to do it. The central challenge in the case is to the ACA’s “mandate,” which deducts a penalty from the tax refunds of persons who go without health insurance. Monday morning’s oral argument in the Court focused on an obscure statute called the Anti-Injunction Act of 1867, which states that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” Several lower court judges have concluded that this language means no one can challenge the ACA until they have paid the penalty. That would delay the litigation for years, since no penalties will be collected until 2015.

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The stakes are huge. Some of the arguments that the challengers are making would call into question the entire modern administrative state. Recent years have seen many bitterly divided, 5-4 conservative activist decisions overturning social welfare legislation – banning affirmative action, the Violence Against Women Act, cutting back on the reach of the Voting Rights Act – but this would be the biggest of all. On the other hand, because only Clarence Thomas has endorsed a radical reshaping of the law like the one ACA's challengers argue for, it is entirely possible that the bill will be upheld by an 8-1 margin.

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But there was another 40th anniversary as well, one less-known, but very much on Ginsburg's mind. It has been 40 years since she filed a brief before the Supreme Court for a case she wishes had established the abortion right instead of Roe v. Wade.

That was the case of Capt. Susan Struck, who had become pregnant in 1970. The Air Force demanded she either terminate the pregnancy -- abortions were being conducted on bases back then -- or leave her post. Struck, a Catholic, said she wouldn't have an abortion but would put the child up to adoption without taking off any unusual amount of medical leave. Though she lost both at the district court and the circuit-court level, she appealed to the Supreme Court, which agreed to hear her case until Solicitor General Erwin Griswold persuaded the Air Force to simply waive her discharge and change the rule. Ginsburg was disappointed.

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The two Democratic appointees to the 9th Circuit Court of Appeals ruled Tuesday that the California prohibition of gay marriage -- the infamous Proposition 8 -- violated the U.S. Constitution. Following the cautious counsel of a group of friends of the court, seasoned activists not part of the new litigation group that brought the suit, longtime liberal giant Judge Stephen Reinhardt passed up the opportunity to produce the gay Brown v. Board of Education.

Instead Reinhardt ruled on the narrowest possible grounds that Proposition 8 was unconstitutional, because it took away gays’ preexisting right to marry, extended to them a few months before by the California Supreme Court. No other state, not even the other states in the territory covered by the 9th Circuit, is affected by the ruling.

The opinion is an explicit appeal to Justice Kennedy, who wrote the original pro-gay Supreme Court opinion in Romer v. Evans, which involved a law that took away gay rights. It practically parrots the language of his opinion verbatim, offering him the opportunity to affirm their ruling and still duck the question of whether there is an overall constitutional right to same-sex marriage.

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“There’s a lot of movement at the White House,” said Craig Holman, government affairs lobbyist for Public Citizen. “I just had a meeting at the White House counsel’s office, trying to encourage them to move forward with the executive order. They have the perfect window of opportunity to get the executive order done.”

“It’s simple—any company that is paid with taxpayer dollars should be required to disclose political contributions,” said Rep. Anna Eshoo, D-California, who has pushed for the White House to issue the order. “With public dollars come public responsibilities, and I hope President Obama will issue his executive order right away.”

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In the case, which was spearheaded by the state's Democratic Attorney General Steve Bullock, Montana's top court restored Big Sky country's century-old law banning corporations from directly spending on political candidates or committees. Legal experts believe that upon appeal, this case will come before the nation's highest court. While there, it could serve as the first test of the precedents in the infamous Citizens United decision that essentially allows unfettered corporate spending in campaigns.

This week on my weekday morning radio show on KKZN-AM760, I spoke with Bullock about the case. What follows is an edited transcript of our discussion (you can find the full audio podcast here).

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Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order. 

By that standard, the Supreme Court needs to review the actions of three of its own members. And if the courts won't act, Congress should.

As Common Cause and Alliance for Justice have documented, the past activities of Justices Clarence Thomas, Samuel Alito and Antonin Scalia raise questions about the propriety of some of their extracurricular experiences. In September, the two groups, along with more than 100 law professors and ethicists, called upon Congress to require the nine justices of the high court to apply to themselves the existing ethical code of conduct rules covering all other federal judges, and to require them to publicly provide valid reasons rejecting recusal for alleged conflicts of interests. As the professors pointed out, the Supreme Court now has no policy on recusal. The justices simply decide for themselves if they have a conflict of interest.

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In a speech immediately prior at Washington's Freedom Plaza, the Princeton professor hinted that he was expecting to be taken into custody before the day was out:

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