the five to four bush v gore supreme court decision. it was a stunning decision, right? all the liberals voted for the gore side. all the conserve atives voted for the bush side. george w. bush became president. the court was so self-conscious about the spur riness that the ruling said it could not be cited in future cases. it was not precedent. in other words, we're not making law here, we just want george w. bush to be president, okay. the bush v gore five-four decision probably did mortal damage that capitol justices would act in small c conservative ways. they were happy to take radical, lead action to depart from legal pres dent as long as it achieved a political aim that they wanted. if that idea was an entirely dead after bush v gore, it got dug up and killed again in one of the court's next high profile cases in citizens united. they went so far out on a limb that they might have had to jump onto another tree in order to stay a loft. that was the last time the court bowed to public interest in what they were doing by releasing audio in the oral arguments on the ca

remember bush v. gore where the public saw the supreme court in many ways jumping into something it shouldn't have and operating in a partisan fashion. if they strike down this democratic president's number one program, will that be viewed as a partisan ruling? >> i think it will. it actually would be good for romney because i buy the former bush writer speaker's line, at any given moment the americans are judging whether he's strong or weak and not left or right and would make him look weak and hurt obama and hurt the court and would be a 5-4 rules which the court never has thrown out a major piece of the safety net before and would be doing it, a 5-4 ruling in which the only votes for it were republican votes and so i think it would probably hurt the court as well. chris: kelly, is it your view or the same view that it's a partisan ruling if they rule against it? >> it's hard to see how the media rhetoric would be played out another way. obama's administration would play it that way and claim it was poli

he was the swing vote on some big cases -- "citizens united," "bush v. gore," "alien v. predator." ( laughter ). , a landmark case that found you could not burst out of someone's chest without a warrant. and this time, it looks like kennedy is swinging to the right. >> here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that changes the relationship of the federal government to the individual in a very fundamental way. >> stephen: yes. i mean, if they can tell to us buy health insurance, that completely destroys the idea of limited government because right now, all the government can do is tax me, draft me, put me in jail, or declare me an enemy combatant and then execute me without trial using a flying deathbot. but making me eat broccoli? ( laughter ) i think we'd all rather die from a preventable disease. and here to tell me if i still have the right to do that, please welcome "slate" legal editor and podcast super star,s can basis. star, emily bazelon. emily, thank you so much for joining me. emily

. >> rose: would you compare the significance of this to bush v. gore? >> oh, yeah. oh, definitely. >> rose: (laughs) talk about deciding who was president, that's pretty damn important. >> it's pretty damn important but, you know, not to revisit that whole saga, if they had decided the other way in bush v. gore bush might have won president anyway if the recount had proceeded. this case, if this law goes down it goes down, period, end of story. the signature domestic achievement of president barack obama, the thing that democratic presidents have tried to do since lyndon johnson in 1965 goes out the window and no one will try again in congress for a generation. you can be sure of that. so just in terms of... we know, we talk about the politics, will it help or hurt. how about the substance? how about the 30 million people who won't get insurance? how about the... all these changes in the law? you know, you run for president but this is why you run for president so you can do stuff like this and it might all go away. >> rose: take us from this day to june. what will

witness bush v. gore which i lived through and where i think the supreme court disgraced itself. >> so chip, as we talk about this, the dirty word for so many people in this debate is the word "mandate," but there are civil rights laws under mandate. you know, some are drug laws, virmal restrictions for businesses. and people really support as bob is pointing out key pieces of this law like care for individuals with the preexisting conditions. so is this more about the mandate s on republicans disagreeing? >> i think it's how the federal government has done this program. when you say han date from the federal government, you don't usually think of daffodils and rainbows. you think of bad things coming down the pike, adding trillions to the budge. i think republicans have a great opportunity when the supreme court, as i hope they do, rules this unconstitutional. we're not asking for activist judges, we're asking for judges to rule on the constitution which most people think this law is unconstitutional. wh

. >> rose: would you compare the significance of this to bush v. gore? >> oh, yeah. oh, definitely. >> rose: (laughs) talk about deciding who was president, that's pretty damn important. >> it's pretty damn important but, you know, not to revisit that whole saga, if they had decided the other way in bush v. gore bush might have won president anyway if the recount had proceeded. this case, if this law goes down it goes down, period, end of story. the signature domestic achievement of president barack obama, the thing that democratic presidents have tried to do since lyndon johnson in 1965 goes out the >> well, you know, the chief is always very important and... for this context but, you know, they are nine very strong willed individuals and the idea that they influence each other a lot or even control each other a lot i think that's mostly mythology. they are nine people who have their own minds, they have no leverage over each other and i think they vote the way they want to vote. >> rose: thank you so much for coming on this program this evening. jeffrey toobin of c

. >> just how big a deal is this on a scale of, like watergate and bush v gore. >> probably the two of them together jses. >> jon: i'm must see this on sunday, sunday, sunday. you had me at bigger than watergate. you know why justice is blind, she stared directly into the solar system, that big. like everything that occurs in this country americans can be divided-- did you enjoy that? (laughter) >> jon: all day long we spend trying to disstill three days of supreme court arguments into digestible bites and hot, hot docket, that's the thing. i have eaten those-- oh, wait a minute. the spelling is different, there is a gavel in the picture. as we know americans can be diindividual mood only two camps. representatives of which gathered outside the courtroom. supporter of obamacare on one side. >> i think nefern this country should have access to quality, affordable health care. >> i pay for my own health care. i'm out here for those people that can't. >> jon: oh, all right, lovely sentiment. and opponents of the bill. >> we won't have rights. >> freedom. >> when dow want it. >> to you wit

. >> just how big a deal is this on a scale of, like watergate and bush v gore. >> probably the two ofhem together jses. >> jon: i'm must see this on sunday, sunday, sunday. you had me at bigger than watergate. you know why justice is blind, she stared directly into the solar system, that big. like everything that occurs in this country americans can be divided-- did you enjoy that? (laughter) >> jon: all day long we spend trying to disstill three days of supreme court arguments into digestible bites and hot, hot docket, that's the thing. i have , all right,d opponents o. >> we won't have rights. >> freedom. >> when dow want it. >> to you within honsly i will not comply with the law because i believe in freedom (laughter) >> jon: so now we have the two sides have drawn the battle lines it's i believe preexisting condition us should not discul few people, versus i believe in freedom. i got to say those do not seam like two havels of the same argument. the scaling seems odd, i'm team jay could be. >> i'm anti-tyranny. >> jon: all right. hate's great. less holocaust. all right, i don't kn

to go after the supreme court and say, fundamentally, this was a political judgment and another bush v gore. >> yeah. >> do you think that would give the justices pause to say, you know what? whatever we think about the, the constitutional arguments, we've got to think about the reputation of the court and so, we're going to be very cautious here about overturning the law. >> well, i understand that concern, but i think, what we have here, is a division similar to one we've talked about before, which is the partisan division in congress itself. and everyone followed this case and obviously, the case was argued seriously, over the issue of the-- very substantive issues and what we discovered is this court, the courts, are divided over the law, left and right divided over the intent of power vis-a-vis the states and the individual. and this is, they are now so far apart. it's going to be very difficult to bring them together. just as it is difficult now to bring congress together, and ultimately, i think, this is the sort of thing that has to be resolved in the election booth and in the novem

roberts, are thinking is how does this impact the court to hand down another 5-4, citizens united bush v. gore like opinion in an election year? >> lean forward with "the rachel maddow show" week nights at 9:00 p.m. eastern only on msnbc, the place for politics. >>> well, here's your "first look" at other news in america today. in tennessee, it was anything but love thy neighbor after a man nearly demolished a home using a tractor to rip the house to shreds. there were small children inside at the time. the suspect lives next door and says he went on the rampage because the family living there was selling drugs, which they deny. the man is now facing multiple felony charges. >>> in ohio, brazen thieves rammed the front of a jewelry store with a stolen suv. then they used hammers to smash their way into the cases and make off with the jewels. police later caught up with the pair, briefly. they ran off, leaving the jewelry and suv behind. >>> in florida, some protesters marching during a recent rally over the shooting death of trayvon martin broke away from their group and stormed a walgreens. m

this is the bush v. gore court?ut emotionally the same. >> maybe they have a chance to redeem it. he was elected president. there is no doubt about it. >> that's right. >> it was stolen from him. so you and i were together on the florida primary which mitt romney won. he has not been able to make the deal. how does he, in your opinion, how does he come out of this? pretty weak? >> i will give you two different views. one is, yes, he is weak. i have maintained three different pieces of the republican party, the theological, which is rick santorum, the libertarian, ron paul and the sort of traditional corporate kind of moderate which is mitt romneys. he can't close the deal with the other two. they are fundamentally income pat patible. i am not sure emotionally he wants that piece but here is the other reality. at that level, et cetera weak. different perspective ofn it. those voters whom he doesn't really appeal to are going to vote for the republican nominee anyway and the romney argument -- and there is so merit to

is going to uphold it would be a stunningly political outrageous decision on the level of court bush v gore when they gave the election of bush. for them to to overturn it if they overturn it then we know what from the republicans the leader of the senate is said we're not going to replace it with anything so that means thirty million americans who would get health care won't get it children that are now covered won't be covered everybody when a preexisting condition is going to get booted out immediately by the insurance companies they're not going to cover those people and americans are going to understand are going to go back to a health care system that covers fewer and fewer people at greater and greater cost . and as more and more dysfunctional it was great to see you thank you for joining us this upcoming election in november is so vitally important for the middle class at stake will be what type of america we want for ourselves and future generations we want one or both the million or congressmen like paul ryan are calling the shots and over our economy and government to their wall

bush v. gorehat's right. the court has had a reputation of being a very activist court. bush v. gore is obviously an example of that. >> right. >> the citizens united case which really opened up the covers from wealth -- coffers from wealthy people to contribute to pacs is another example but i think the ramifications of this case are as large as what we have seen in decades. >> what happensed yesterday? the arguments, i understand yesterday were all procedural, whether or not this was -- the argument for them to take up this case. any indication of what the members of the court felt about that? >> yeah. you know, i kind ofcharacterize the arguments yesterday as the horseor hors douevre and today and tomorrow the real meals. they had arguments called the anti-injunction act. this was a statute that was passed in 1867 during reconstruction. and what ist, in effect says is that if there is a law that charges a tax, that anyone who wants to contest that has to weight until wait until that tax liabili

not since bush v. gore has a case drawn so much attention. here's justice anthony and paul clemeent, the lawyer representing those 26 states. >> i didn't take the time to figure this out, but maybe you did. is there any chance at all of 26 states opposing it and all of the states supporting it have democrat governors? is that possible? >> there's a correlation, justice. >> yeah. >> that correlation is no secret the court has a conservative majority with anthony kennedy with the main swing vote. the justices and law clerks who see themselves as good faith actors attempting to interpret the law and the general public who increasingly feel towards the court discrust and alienation. in 1988, 80% of the public said they had trust in the pram court. last year, it was 46%. i want to start on this point. when we talk about the court and the role the court play ins our public life as an institution, there's sorts of two ways to think about it. it has this aura of the cloaked, you know, the cloaked priests who go to the temple and they read the inarids

as with the bush v gore case in 2000, will the justices be criticized for letting politics creep in. huge political overtones, but i think the justices will probably put them to the side. the legal stakes are so high that i don't think they will pay attention that much if at all to the fact that it is occurring in an election cycle. >> we are talking about four separate issues being argued for six hours over three days. that rarely happens and shows how important this case is. >> the spleem court takes this on starting tomorrow. the big fight is over the law's central provision. the mandate that requires americans to buy health insurance set to take effect in 2014 and as it is written now, those who don't buy insurance would face penalties. what can we expect? the justices could strike down all or just parts of the law. that would mean throwing out the individual mandate which some proponents say is the lynch pen that makes the whole plan work. they may also press pause on some of the larger issues and decide on them later. whatever the outcome we will have to wait to hear their deci

as with the bush v. gore case in 2000, will the justices be criticized for letting politics creep into the courtroom? >> well, the health care cases have huge political overtones. i think the justices are probably going to put them to the side. the legal stakes are so high that i don't think they'll pay attention that much, if at all, to the fact that it's occurring in an election cycle. they've just got to get the case right. >> what we're really talking about here is four separate issues being argued for six hours over three days. that is very rare. that rarely happens. and as for how this will shake out, well, the justices obviously they can do anything they want. they have a lot of options, rule narrowly on just the facts of this case or offer a sweeping road map on what power congress and the president really should have going forward but even after these marathon public sessions. wolf, you noted we're still not going to get a final decision for a while. it wouldn't come likely until three months, someti

>> hey, how about when you were deciding bush v gore, what happened to limited government then? no, you trampled all over state's rights, you went into florida's business, told them how they could or could not do a recount. you didn't give a damn about the limited powers of the government back then. this is the most activist judge there is and all he cares about is what do my republican pay masters want me to do. this is a guy who hunts with dick cheney and goes to koch brothers fundraisers. he is a fraud. he apparently has convinced some of the other justices, so now previously legal experts believed that president obama's team would win this or now definitely not so sure. listen to jeffery cuban. >> this was a train wreck for the obama administration. this law looks like it's going to be struck down. all of the predictions including mine that the justices would not have a problem with this law were wrong. >> why is he saying that? not just because of scalia. he doesn't actually pay attention to the case, what do the republicans want? i'm going to vote that way. god, i can't te

i don't know -- everyone is talking about the same time something this big came long was the bush v. gore case. when you think about it, it is very complex law but this issue today is pretty simple to understand and gets to the crux of the fight and the constitutional battle they're facing. this individual mandate. they're having two hours of oral arguments on the question, is the individual mandate constitutional? this is the provision requiring americans nearly all americans to have some form of health insurance beginning in 2014 or pay a financial penalty, three federal judges previously ruled that this law, the law to be constitutional, one other federal judge ruled it to be unconstitutional in that ruling calling it a breathtaking in its expansive scope and this circuit split all but assured the supreme court would have to take up the matter and have the final say on this and that's what they're doing. a coalition of 26 states are suing and challenging this saying the federal government does not have the power under the constitution to force americans to buy something they may or may

as with the bush v. gorese will justices be criticized for letting politics creep into the courtroom. >> they have political overtones. i think the justices will put them to the side. the legal stakes are so high that i don't think they will pay attention that much, if at all, to the fact it's occurring in an election cycle. they have just got to get the case right. >> what we're talking about here is four separate issues being argued for six hours over three days. that rarely happens and shows just how important this case is. even after these marathon public sessions, we still won't know the final outcome for likely three months. kate bolduan, cnn, at the supreme court. >>> our legal guys are standing by to help us go through the supreme court arguments, the time line starting monday. as we go live to break, however, i want to show you pictures of a rally in washington, d.c. pretty sizable in the shadow of the capital building. there protesters are demanding the repeal of that health care reform law ahead of