If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.
If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government. But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in and expecting the demise of the mandate seemed decidedly premature.
The Justices will cast their first votes on the mandate’s constitutionality later this week, and there are perhaps three months of deliberations that would then follow. Much will be said and written within the Court in private during that time, and that obviously could affect the ultimate outcome. The argument on Tuesday pointed the Justices in opposite directions – the first hour against the mandate, the second hour cautiously in its favor. Curiously, that was just the opposite of what the lawyers were seeking out of their side of the hearing.
In other words, the government's side is getting 4 votes, period. It's not at all clear if the challengers will get more than 3. Chief Justice "sensible centrist" Roberts is leaving the door open to make it 6-3 should Kennedy side with Breyer, Sotomayor, Kagan and Ginsburg. While nobody really sees Roberts and Kennedy going opposite ways on this, it's possible. But a 5-4 vote on a case this big would be a disaster for the court, much like Bush v. Gore. Roberts knows this.
I still say the law survives as is. But if I'm wrong, it would be that the law was overwhelmingly struck down with the expectation of a new law...perhaps one influenced by the courts. I don't know (but that seems like a court-ordered single payer plan would be the longest of shots and not within the realm of reality).
Yes, Verilli was pretty awful. But it was the four liberal justices who did a better job of explaining the government's position than he did, and even Kennedy and Roberts came around to attack the states' lawyer, Paul Clement. That says volumes.
In my mind, Roberts is the one giving this away as a 6-3 decision in favor of the government here anyway. We'll see.
More on the entire case this week at The Economist.
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