You know when you and eight friends want to go to dinner, and four want to go to that one place, and four would prefer the other? Even worse is when they turn to you and say, “Well, it’s up to you.” Now just imagine those friends are all Supreme Court justices and they’ve just handed you the task of being the decisive vote on the fate of health care reform. That’s how it must feel to be Justice Anthony Kennedy every single day.
As with many high-profile cases over the years, the post-arguments analysis coming from the U.S. Supreme Court today is that Kennedy will once again be the deciding vote on the fate of Obamacare. Where he stands after today’s session remains a matter of debate, though.
NBC’s Pete Williams and CNN’s Jeffrey Toobin seem to think that the court will find the individual mandate to be unconstitutional, while SCOTUSblog’s Lyle Denniston thinks that while it is certainly Kennedy’s call to make, the issue hasn’t yet been decided. “Expecting the demise of the mandate seemed decidedly premature,” wrote Denniston this afternoon. (Toobin sees no gray area here: “This law looks like it’s going to be struck down,” he said.)
Most reports coming from the court indicate that Samuel Alito and Antonin Scalia played the role of predictable critics of the government’s case, arguing that if Americans are forced to buy health insurance, little would stop future mandates on everything from cell phones to broccoli and burial services. (Yes, those were all mentioned.) The four liberal judges seemed sympathetic to Obama’s health care reform, while Clarence Thomas again maintained his monk-like silence during court sessions. (Audio and transcripts of all the arguments from today are available here.)
What many seem to agree on is that Solicitor General Donald B. Verrilli Jr. didn’t make the case in a particularly convincing fashion:
Today was the second of three days of arguments in the Supreme Court. Tomorrow the court takes up the next logical concern-can Obamacare survive if the individual mandate is found to be unconstitutional? Decisions are expected in June.