SCOTUS Day 2 on the Affordable Care Act

Posted by AzBlueMeanie:

Today's argument was the "Superbowl" as Politico called it, the oral arguments on the individual mandate. I would caution anyone from trying to read the tea leaves from oral arguments today. There was skepticism with a dose of Devil's advocate in the questions from the bench. The Justices were testing the lawyers' arguments.

Tom Goldstein at SCOTUSblog.com picked up on the important question from Justice Kennedy towards the end of oral argument. The argument is done:

Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.

Lyle Denniston at SCOTUSblog.com agrees. Argument recap: It is Kennedy’s call:

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.

Justice Antonin Scalia led the charge against the mandate in the first part, but remained largely silent in the second.  When he was on the offensive, he seemed to have the Chief Justice and Justice Samuel A. Alito, Jr., clearly with him, and there were repeated signs that Kennedy, too, was against it. [Justice Clarence Thomas, who doesn't ask questions, is a definite vote against it.]

* * *

Justice Stephen G. Breyer was the most vigorous defender of Congress’s power to select the mandate as the key piece in the new health care law’s regulation of the insurance industry, but almost equally speaking up for it were Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.  But those four, of course, cannot control the outcome on their own.  But, in the end, if Kennedy were to wind up accepting the mandate’s validity — however reluctantly — those four could then be in the majority.  Such a majority, it appeared, would probably form only behind the theory that the mandate was within Congress’s power under the Commerce Clause, not under its taxing authority in the General Welfare Clause.  The tax argument seemed to lack force, and Verrilli used it primarily as just a backup.

If that coalition were to form, it would be likely that Justice Kennedy, the senior among those five, almost certainly would assign the opinion to himself — unless, of course, the Chief Justice ultimately were persuaded to go along so that this historic case did not turn out to be decided 5-4.   Roberts was among the more combative adversaries of the mandate during Verrilli’s argument, but he made considerable efforts to remind the challengers’ lawyers of the government’s key points, perhaps to test how solid their answers to those points would be.

If I had to venture a guess I would say Chief Justice Roberts will be in the majority, whichever way this issue is decided, and he will write the majority opinion. This case is as much his legacy as the Affordable Care Act legislation is President Obama's legacy.

Audio of the individual mandate argument is here.

The transcript of the argument is here.

C-Span is also airing the oral arguments in the evening.