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AT THIS HOUR WITH BERMAN AND MICHAELA

Discussion of Supreme Court Obamacare Ruling. Aired 11-11:30a ET

Aired June 25, 2015 - 11:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[11:00:00]

NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL: Yes, this is striking. There are only four justices out of the nine that have been appointed by democratic presidents. Today you had six of them, so two republican appointed justices, the chief justice but also justice Kennedy coming in and saying "This is the way. This is the law that congress intended."

JAKE TAPPER, CNN CORRESPONDENT: Are you surprised at all that Chief Justice Roberts has emerged in this role?

KATYAL: I'm not. The chief justice I think, from the time of his confirmation hearings and even before that when he was in private practice, I think was known as a, kind of sober, even handed, not particularly political person. He surely has some stronger...

TAPPER: He was a member of the federalist society I believe...

KATYAL: Well so are many people. That appellation doesn't mean very much. At the end of the day, this was a decision for - based on really the straightforward legal principles. What's the best way of understanding this complicated statute and what the chief justice said, we're sitting in the courtroom and listening to him. Within one minute you could tell where this was going. He said basically it wouldn't make sense for congress to pass a law with a poison pill laced right into it. That's effectively what he was saying.

TAPPER: Although, Jeffrey Toobin, if I could go to you, the conservative argument is that when it comes to these types of cases, one should - court justices should go with the narrow definition of what the law actually says and not try to interpret it broadly. That's why Justice Scalia is writing things along the lines of, quote, under all the usual rules of interpretation, the government should lose this case, but normal rules of interpretation seems always to yield to the overriding principle of the present court, the Affordable Care Act, must be saved, Jeffrey Toobin.

JEFFREY TOOBIN, CCN SENIOR LEGAL ANALYST: Well I think that is not exactly how many people would view what the court did here. Now what Justice Scalia himself has said in other cases is that when you are interpreting statutes it is not just a word by word analysis that's important. You need to look at the context of the law, and Chief Justice Roberts in his opinion repeatedly came back to that idea, which is - it's not a law of just four words. It's a law that sets up a whole system.

It's a system that is supposed to give insurance subsidies by private companies. What Roberts said was if the interpretation by the plaintiffs and by Justice Scalia is correct, it would lead to a depth spiral of insurance companies going out of business - not being able to afford giving these subsidies. So the idea that statutory interpretation led only to Justice Scalia's conclusion is not right, I think, and six justices rejected it.

TAPPER: Well it's certainly true that a majority on the court, including the chief justice of the Supreme Court, agree with you, Jeffrey Toobin, and not with Scalia who wrote, if I may dive into another - Scalia is quote, the court's next bit of interpretative jiggery pokery involves other parts of the act that purportedly presuppose the availability of tax credits on both federal and state exchanges.

Jiggery pokery - Jonathan Turley, let me ask you, it seems inescapable that the Obama administration in making their case didn't only talk about the law or what is the proper interpretation of the law but what would happen to the broader law? What would happen to 6.4 million Americans if justices did not side with them? We like to think these things are only decided based on the merits of the law, but sometimes the larger worldwide reality is the context that matters.

JONATHAN TURLEY, LAW PROFESSOR GEORGE WASHINGTON UNIVERSITY: No, I think the administration was very successful in sort of a game of chicken here. They made it clear to the court there's no plan B. This will be a death spiral. It came up in oral argument. You know, couldn't congress just step in and fix this if it wanted to? This is a drafting error. And the administration kept on pushing back and saying, "No. This is really for the whole - you know, this whole thing will collapse." And you can see that resonated to some degree with the court in his language.

They believed that this was really a big ticket item. This would fail. And I also think that here you're appealing to Roberts' institutional background. He's an institutionalist when it comes to the court. He doesn't like the court making huge decisions. He doesn't like the court being perceived as political. And all those arguments work well with Roberts.

But at this - Jeffrey, I think most people looking at his broad interpretations, particularly in the first individual mandate case, but also in this case, will view it as distinctly not conservative. And that's the type of approach that you see from him. And that's going to make the remaining cases interesting, including the EPA case, which is another statutory interpretation case. And whether Chief Justice Roberts will vote with the left side of the court, in that case.

TAPPER: I'll give Jeffrey Toobin his equal time to respond to you, Professor Turley, but let me bring in Neal Katyal. He said you want to ask - as somebody who has argued cases before the Supreme Court, explain for our viewers, how common is it to make the argument not only about the law but about the effect of the law on real people, even if the court is supposed to only be focused on the law?

KATYAL: But I think that's a wrong way of understanding and I disagree with Professor Turley. This isn't a game of chicken. The chief justice's opinion is not based on chicken. It's based on an idea that congress couldn't have possibly intended to pass a law with these crazy consequences that the challengers were saying. So it's actually a way of understanding what the statute means.

[11:05:00]

So I think the chief justice's opinion is not based on chicken, it's not based on ideology or trying to make the court look good. It's based on straightforward simple legal principles, the court for the second time in three years upholding President Obama's Affordable Care Act.

TAPPER: Jeffrey Toobin, you seem to be represented here by Neal Katyal. But I want to give you an opportunity to speak as well.

TOOBIN: I'm fortunate to be so well represented. But it's just, the notion of what is conservative and what is liberal has kind of changed in recent years. You know, it used to be in the 1950s and 1960s, conservative meant the court defers to the political branches of government. The court says, "Look, we don't want to get involved in political matters."

In more recent years the conservatives have been - become much more active on the court, more interested in striking down laws, but I think what John Roberts was doing was he was going back to an older idea of what it means to be a judicial conservative. And what he was saying very simply is this is a decision for the political branches of government.

If ObamaCare is to be overturned, it should be done by the people who are directly answerable to the people, to the congress, and to the president. The courts are going to have a limited role. We are going to stay out of it. We're going to interpret the law. And that's all we're doing. That's the kind of conservative John Roberts appears to be today. And it's a very old and, frankly, distinguished idea of what it means to be a conservative.

TAPPER: If you're just joining us - the US Supreme Court led by Chief Justice John Roberts, who was appointed by President George W. Bush, handed President Obama another Supreme Court victory on ObamaCare. This time writing the 6 to 3 majority opinion that the Obama administration's interpretation of the Affordable Care Act, specifically four words, should be upheld and not according to the vagueness under which many said it was written.

This means, of course, in practical terms, 6.4 million Americans will not have their subsidies taken away from them. A huge victory for President Obama. Neal Katyal, former acting solicitor general for the Obama administration, we have one more major case to be decided and that is whether or not the 13 states that continue to ban same-sex marriage can uphold that ban. Can they, can those keep those bans? Can one read the tea leaves here or is it all just completely separate?

KATYAL: You know, the Supreme Court, unlike other entities of government, doesn't engage in log rolling. So it's not as if it's like "Oh you vote liberal once and I'll vote conservative the next time." So, no I don't think you can read it from that. I do think that the tenor of that oral argument about same-sex marriage was overwhelmingly in favor of the plaintiff's challenging the state law bans, in favor of marriage equality.

The state struggled to find any rationale for these prohibitions. And so I do suspect we will see a quote-unquote, liberal decision coming from the Supreme Court in the days to come, probably Monday.

TAPPER: And we are waiting for President Obama to come out to the Rose Garden at 11:30, in roughly 22 minutes, to talk about his big victory at the US Supreme Court. President Obama last evening at a gay pride event in the White House talking about all the momentous Supreme Court decisions pending. I don't know that he favored one more than the other but certainly this ObamaCare one is an important one for his legacy, Professor Turley.

TURLEY: Oh there's no question. This is a big win for the White House. It's also a big part of, I think, what has become the Roberts' legacy. He assigned this decision, his opinion to himself for a reason, you know. He was there at the individual mandate decision. He's here again. It's not 5-4.

But he wrote a very sweeping endorsement of the view of the agency and the administration, and this is going to be - I agree with Jeffrey on this. This is going to be a key part of his legacy. Now, for republicans, for conservatives, they view this as sort of a Blackmun or Souter-esque moment.

TAPPER: That's an insult for those who don't know. I mean, that's what it is, right? I mean, a republican - a conservative president picking a Supreme Court justice, they want and they expect will be conservative like Harry Blackmun, like David Souter, and it turns out they're not that way.

TURLEY: No Roberts was viewed as the guaranteed conservative, you know. The guy that Karl Rove had behind glass, you know, break in case of nomination. And he had everything, you know. And it's a surprise for folks to see these decisions not just in the outcome but in his interpretative approach. But they've seen - we've seen this before. Justices change. And they should change ultimately. They evolve with their court. Some have moved right, many have moved left. Henry Blackmun is an example of a conservative who went far left. Souter moved to the left.

TAPPER: Stevens.

[11:10:00]

TURLEY: Stevens was viewed as conservative, moved to the left. Even people like Brennan was viewed as fairly conservative, and became an icon of the left. So conservatives feel burned essentially by history in selecting these nominees. And I expect you will hear a lotabout that in the aftermath of this decision.

TAPPER: On the campaign trail one would assume, especially since the two so-called republican picks in the 6 to 3 decision. On the 6 side, Kennedy was picked by George H. W. Bush, and of course John Roberts picked by his son, George W. Bush.

Jeffrey Toobin, sometimes as we have been discussing, sometimes the Supreme Court justices become campaign issues, especially among republicans who are sick of David Souters, or sick of people they are told will be safe, conservative votes and end up not being that way.

TOOBIN: Right. If I could offer a small correction. Anthony Kennedy was named by Ronald Reagan, not...

TAPPER: Kennedy was, OK? Sorry.

TOOBIN: Yes. But, you know frankly, I think it is somewhat of a myth that presidents get surprised by their Supreme Court justices. Yes, it is true John Roberts has now voted in favor of ObamaCare twice. But by and large, these justices turn out as expected.

You have to go back to the Eisenhower administration, and Earl Warren and William Brennan, and maybe Nixon with Harry Blackmun to find justices who really turn out to be big surprises. John Roberts is an institutionalist. He is an old-fashioned conservative, and this is an old-fashioned conservative decision.

When you look at Roberts' record on civil rights, on overturning the parts of the Voting Rights Act, on Citizens United and all the deregulations of campaigns, John Roberts has been a very conservative chief justice. I think what today's decision illustrates is just how far conservatives have pushed the court with, frankly, I think a very weak lawsuit that they got three votes.

So I am a little less persuaded that John Roberts has turned out to be some kind of surprise. But if I could add one more thing, it is a healthy thing for a democracy to debate Supreme Court justices in presidential elections. It is a big part of what presidents do, and to the extent this injects the Supreme Court into the presidential election. I think that's all to the good because people should pay attention to it.

TAPPER: Thank you. And thank you for the correction. Obviously Kennedy was Ronald Reagan's pick. Neal, you and I were in Hanover New Hampshire when they had to pull Ginsberg because he had smoked marijuana with students decades before, especially in retrospect with marijuana now legal in several states. What an odd turn of events that was.

KATYAL: Yes absolutely. And then, one thing about, you know, everyone is talking about this being a victory for the American people. It is a victory for John Roberts because John Roberts at his confirmation hearing said something - he didn't say he was an old- fashioned certainly, he said "Look, I'm going to be an umpire. I'm going to call balls and strikes." A lot of people on the left said, "Oh, that's just, you know, horse manure. There's no way in which that's what he's going to do."

I think the chief really showed his colors today and three years ago. In today of course joined by Justice Kennedy as well and the four democratically appointed justices in giving not just the president but the American people I think a sweeping victory.

TAPPER: Although we'll see what democrats have to say about him after the same-sex marriage ruling comes down. Who knows what's going to happen there. Wolf Blitzer, back to you.

WOLF BLITZER, CNN ANCHOR: OK guys. Thanks very much Jake. Let's talk about what's going on. We're waiting, in about 15 minutes the president of the United States will walk from the oval office down those stairs into the Rose Garden and make a statement. He is obviously thrilled, thrilled by this decision upholding ObamaCare, the Affordable Care Act, not by a 5 to 4 decision, but by a 6 to 3 decision. The decision led by the Supreme Justice John Roberts supported as well by Anthony Kennedy and the four justices nominated and approved by democratic presidents.

So let's talk about the ramifications of this for the president. Gloria Borger is with me, John King is with me, Hilary Rosen, Kevin Madden, our CNN political commentators. Gloria, I don't think we can overstate how big of a deal this is for the president and his legacy right now.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: This may be the day the president looks back to and says "This sealed the deal for my legacy and for what my presidency is going to be remembered for," because at this point, and John and I were just talking about this, at this point there's very little congress can do unless they get a new president and they take away from people something they already have.

And by the way, the latest polls show that 47 percent of the American public now approves of ObamaCare or Scotus-care as Scalia calls it, so that would be increasingly difficult. It's also a legacy day for John Roberts. He considers himself a conservative judge, period. I believe that he is. He's not an activist judge. All throughout his decision today, he wrote about a natural reading of the law, plain meaning of the law. It wasn't the jiggery pokery that Scalia talked about.

[11:15:00]

Scalia said it's not our job to correct bad drafting of a law, but what Roberts plainly said is "It's not my job to rewrite a law's intention. I'm not going to do that because I'm conservative and not activist."

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: I don't think we'll hear the president say this, but I think it's probably a fair bet to say the president of the United States now thinks his worst vote as a United States senator was voting against John Roberts to be the chief justice of the Supreme Court.

BORGER: Right. KING: Because John Roberts has now in two ObamaCare cases put the cement in what will be a piece of the Obama presidential library without a doubt. It's a big day for the Roberts' court. And imagine this, by the end of the session, whether that's tomorrow or on Monday, if the court does what most people expects it to do, if the Roberts' court says same-sex marriage is a legal national right, imagine this is not just a legacy for the Obama administration and for the Roberts' court, but for George W. Bush.

George W. Bush appointed this man to the court then appointed him to be chief justice. Remember it was not that long ago, just 11 years ago, George W. Bush won a close re-election in 2004, closing with what issue? Saying "Re-elect me and I will pass a constitutional amendment to ban same-sex marriage." That was his big closing pitch to conservative voters in places like Ohio in 2004. Here we are, fast forward to today, with this court, with a chief justice he appointed could take us to a place that George W. Bush could never have imagined.

(CROSSTALK)

BORGER: You know, we don't know what...

BLITZER: Yes, we can get that decision as early as tomorrow morning, the decision on whether or not same-sex marriage, marriage equality is going to be approved throughout the United States. Let's go to Hilary Rosen. Hilary, you're one of our CNN political commentators, you're a democrat. Obviously you're very pleased, but what are the ramifications, political ramifications, of this decision?

HILARY ROSEN, CNN POLITICAL COMMENTATOR: Well, you know, I think you need to combine two decisions that came out today, both the ObamaCare decision and the Fair Housing Act decision, and call it a sweeping victory for President Obama's administration because, you know, this court historically has seen despite, you know, Justice Roberts' view on health care, as a very conservative court undoing many years of civil rights activities, particularly in affirmative action areas.

Here today the court reversed that trend and supported fair housing. It's a big civil rights decision. I would be surprised if the president didn't also comment on that in his speech today. So you've got two significant victories for the White House from a court that, democrats at least, have viewed as principally conservative.

Their marriage decisions over - you know, in the Windsor case and hopefully tomorrow have been seen as outliers in that conservative court, not necessarily the trend. Today, I think, shifts that a bit.

BLITZER: Kevin Madden, what do you think the republicans are going to be doing about this now for all practical purposes? They're not going to be able to change ObamaCare. It's going to remain in effect until there might be a republican president, but that's going to be a while, if in fact, there is a republican president. How do they play that going into the campaign if you were advising one of those republican candidates? KEVIN MADDEN, CNN POLITICAL COMMENTATOR: Well look I think President Obama is going to come out today. He is going to say, "Look, ObamaCare is the law of the land, deal with it." But I think Jeffrey Toobin made a very astute point earlier. I think this is probably over in the courts, the fight over ObamaCare that is, but in the political arena, it is not over.

And I think that's what you're going to see from republicans going forward. So many of these candidates who are going out there and making the case for their campaign to be president in the context of 2016, they're going to say "Elect me and we'll change this." So I think that is going to be - look, for all the polls that we talk about where ObamaCare has a better opinion right now with the American people. I disagree with a little bit of that, but it is - there's nothing that is as animating an issue right now for base republican voters as ObamaCare.

So, so many of these candidates are going to go out there and promote their vision for what a more patient centric, what a more state centric health care reform program should look like after President Obama is gone from office.

BLITZER: All right. Hold on a second guys. Gloria wants to weigh in. Gloria?

BORGER: Yes, you know, I think the question Kevin raises about what republicans are going to do and what they're going to talk about during this presidential campaign is real, but where are the solutions? Because you are now taking something away from people. You're taking subsidies away from people and saying, "OK. We're going to replace it with "X." And we've heard lots of ideas out there, but there is nothing solid.

There is nothing that anybody can prove will work, and there has been an awful lot of time that's elapsed to give the republican party an opportunity to say, "OK. This is what we would replace it with."

MADDEN: Yes that's a lot - I think there are a lot of republicans that, of course, would disagree with you that there's nothing solid.

BORGER: Right.

[11:20:00]

MADDEN: If you look at Chairman Ryan, you look at Congressman Price, Congressman Fred Upton, they've all promoted more patient centric, more state centric proposals. I think the big difference is - you're right, it can't be just about repealing. It can't be about just taking things away.

There are a lot of popular items inside ObamaCare, when litigated individually, that may be, that, right - that may help its popularity, but when you argue a republican vision of what the country ought to look like on health care reform versus the ObamaCare vision, that is what a lot of candidates are going to be charged with doing in the context of 2016. BLITZER: Let me bring Dana Bash up from Capitol Hill into this conversation. Dana, the reaction from democrats and republicans coming in big time.

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Big time. And it's very interesting moment I think for the republican party because despite the bravado, despite saying, you know, you see this is proof, you need a republican in the White House, elect me, you know, all of the republican candidates are saying and all, repeal ObamaCare.

The dirty little secret is that the republicans, especially here on Capitol Hill, they're breathing a sigh of relief because the "elect me and I'll change ObamaCare," that's easy republican rhetoric. It's really easy, and it is uniting as Kevin was saying a republican rhetoric.

If the court went the other way and got rid of these subsidies, republicans would have had it in their lap. They did have a plan as I mentioned earlier, but it would have been so divisive for the republican party because some would have wanted to have a patch so the whole entire plan wouldn't have been completely disrupted, 6.5 million people would have effectively lost their health care, but they would have had the purists in the republican party demanding they do nothing.

And so this is a divisive issue that they don't have to deal with right now in the republican party. And behind the scenes privately a lot of republicans I'm talking to are saying "Thank goodness." You know, in many ways, it was a "be careful what you wish for" situation, and they didn't get it. It seems counterintuitive but I think that's the political reality going on behind the scenes in the GOP.

BLITZER: You make a good point, Dana. So for all practical purposes between now and until President Obama leaves office, and he's got that veto pen, as you know, the republicans are not going to simply back away and not try to pass additional legislation in the house and the senate where they have majorities to try to derail ObamaCare because they know the president would simply veto it or are they still going to do that to make a point?

BASH: Both the house speaker and the republican senate majority leader Mitch McConnell said today that they are going to keep trying to do this legislatively. But, you know, they know the reality. Even if they do get through the process, which is by the way, highly unlikely that they'll even, with the majority of the senate, would even get if off the senate floor. If they continue to do that, they know it's just to make a political point and to keep the republican base fired up, to keep them excited and frankly to keep the fund- raising dollars going into republican coffers, and to a lot of these outside groups.

BLITZER: All right, standby Dana. John King, as we know, the president in about ten minutes, less than 10 minutes, at the bottom of the hour is going to be addressing the nation from the Rose Garden over at the White House. He's obviously a very, very happy man today. People are already suggesting this might be the best day that he's had in the White House so far - the reaffirmation of his legacy issue, the Affordable Care Act.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: You could certainly make an argument that the last 24 hours have been a huge day for the president. And I think people will debate, is it as big as the raid that, you know, captured and killed Osama bin Laden? Is it as big as passing health care to begin with, which was had been a democratic priority for 50 years, a centerpiece of the Bill Clinton administration that he failed to get through the congress? Or is it, right now the last 24 hours where, again, he came back from the ashes, an embarrassing defeat on trade in the United States congress turned into a victory in the last 24 hours.

Now this, the second Supreme Court ruling upholding his signature domestic achievement. So you could make the case that the last 24 hours, some would argue have been the best 24 hours of his six years as president. Certainly the best 24 hours in terms of accomplishments and legacy, lasting accomplishments for the second term without a doubt.

And I think it's a fair question to ask the bigger question, so what does he do now? He's going to try to make case that this is the law of the land and back off. It will be interesting to see if there's gloating in his tone or not because your conversation with Rand Paul was fascinating. This will not happen before the presidential election. Republicans want this issue to drive their base voters.

But look what Massachusetts has done, forgive me Mitt Romney. Massachusetts passed this law. Several times they've gone back to fix it because as Secretary Sevilla said, it's a big law. You don't get it perfectly. Republicans and the president have ideas to change it and amend it, but the president won't enter those conversations until the republicans drop the repeal part.

If the republicans would say "Our goal is to amend ObamaCare, not repeal ObamaCare," we would live in a different world but that will not happen before the next election.

BLITZER: All right, we're only five minutes or so away from the president of the United States. I want to quickly go back to Jake Tapper. He's got a special guest. Jake?

TAPPER: That's right, Wolf. One of the great things about reporting on Capitol Hill is that sometimes people just walk by and you can grab them, and that's what I did with Vermont Independent Senator Bernie Sanders who, as you know, is also running for the democratic presidential nomination. Senator Sanders, thanks so much for making time for us today on such a short notice. Your reaction to the 6 to 3 ruling.

[11:25:00]

SENATOR BERNIE SANDERS, PRESIDENTIAL CANDIDATE: Very positive. Look, the United States of America is the only major country on earth that doesn't guarantee health care to all people as a right, and that's the goal we have got to shoot for. The idea of throwing 6.4 million people off of health insurance, as would have been the case if the court ruled the other way, would have been a disaster and totally disruptive of the ACA. So I applaud the Supreme Court. I think it's the right decision.

TAPPER: I confess I don't know how you voted on John Roberts. I suspect you didn't vote to confirm him, that you were one of the 22 democrats.

SANDERS: When was he...

TAPPER: He was during the George W. Bush years. OK. So, I guess my question is, are you surprised by the role Chief Justice Roberts has played? This is now the second time he's ruled in favor of ObamaCare.

SANDERS: Well, I think on this one, to be very honest with you, the intent of congress was pretty clear, in my judgment. This was not a difficult ruling.

TAPPER: OK. And then of course, we are awaiting a few other decisions, perhaps most notably a ruling on same-sex marriage and whether the ban in 13 states can continue. What are you anticipating? What can you say?

SANDERS: What I hope very much is that what the Supreme Court says is that all people are entitled to get married regardless of their sexual orientation, and that those bans are overturned.

TAPPER: All right. I believe you're going to be my guest on State of the Union, not this Sunday but the next, and we'll talk to you then. Back to you Wolf. Thank you so much, Senator.

BLITZER: All right. Thank you very much, Jake Tapper. Thank you very much, Senator Sanders as well. We're only a few minutes away from the president of the United States getting ready to walk down those stairs from the oval office into the Rose Garden.

Our White House correspondent Michelle Kosinski is on the scene for us. Set the scene, Michelle. They must be so thrilled over there.

MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT: Yes, I mean, you can really feel it here. This is just the usual assembly for a statement in the Rose Garden but you can feel a different energy today. Administration officials just walked in laughing, somewhat boisterous. You can tell that they're celebrating.

And now, we'll hear from the president. In his words, what this means for him, possibly what this means for his legacy. We've heard from him a number of times, as well as from the White House, over the last couple weeks on this decision as it was pending saying things like this should be an easy case. It shouldn't have even been brought up in the first place.

We assume that the court is going to rule the way we expect that scholars have said that it would, challenging the court almost. Some might say even admonishing the Supreme Court for taking this case, but it ruled in the White House's favor and now we'll hear the president talk about that. He's not going to take any questions. That doesn't mean that some won't be blurted out. And this is a celebratory day clearly, as we've been talking about, the biggest day arguably in his presidency when you couple that with the passage of trade promotion authority this week. That was by no means easy. Also you could say another cliff- hanger or nail biter. So he'll possibly address both of those, his pleasure and vindication at these things going through in his favor, Wolf.

BLITZER: All right Michelle, we'll standby. Only a couple minutes or so away from the president of the United States, Gloria is still with us, John King is with us. Gloria, the president has got to set the tone now, and as John just mentioned, he can't really go out there and gloat.

BORGER: No. And it's not, you know, it's not his manner to go out there and gloat. I think John would agree but...

KING: Republicans would disagree. Republicans would disagree with you on that one. We'll see.

BORGER: But I think what the president is going to talk about is looking forward and essentially say to republicans "Get over it. OK? You've lost now twice. You challenged this law twice. Your conservative Supreme Court chief justice has sided with us twice. Let's move on."

If you want to fix the law, he's going to say and even the White House has admitted that this is a law that could use some tinkering. He will say probably "Let's make it better but now you cannot get rid of it. And you continue want to start taking away health insurance coverage from people who already have it." I think the president would argue that Chief Justice Roberts did the conservative thing, which is not to overturn the intent of something congress meant to do.

KING: The president will have to wait until he's out of office to properly thank the chief justice because you don't like to mix the branches of government, shall we say, otherwise he'd scribble a thank you note. But even the democrats face a challenge. We were talking about the short term, this would have been a huge challenge for the republicans if the court threw out the subsidies because the republicans especially in some big 2016 states would have had to deal with people who suddenly were at risk of losing their health insurance.

Now though, the republicans would say their base is energized against this, so can they use this in 2016? Democrats would say it didn't work in 2012 but republicans will try to gin up their base in 2016, say this is your only chance now. Keep the republican congress and elect a republican president. We'll see if it works.

For democrats, if when you oppose something, you get more energized. That's what we saw in the tea party movement. For democrats they're going to have say "We need one more election. We need to elect a democratic president after President Obama. If we can succeed at that, then it's hardened, it becomes a missile silo at that point. ObamaCare is the law of the land. Legal challenges are over." And you've had the Obama reelection. And then a successor elected as the democratic president. Then the democrats would say "Game. Set. Match."

BLITZER: Then it becomes, then it becomes a social security Medicare, fully ingrained, which were initially opposed by a lot of conservatives but it becomes part of value of America.