And so did Lyle Denniston of the venerable SCOTUS Blog.
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 in its favor 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, anyway, 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 by a possibly embarrassing 5-4 vote. 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. His vote in favor of the mandate did seem like a long shot, unless he found institutional imperatives for going along if a majority were to uphold it.
And thankfully, so did Sahil Kapur at TPM.
Despite their tough questions, both Kennedy and Roberts indicated sympathy with the view that health insurance is a unique market that may require a unique approach to regulate — and that’s central to the constitutional question at hand.
“I think it is true that if most questions in life are matters of degree,” Kennedy said, “in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.”
Despite his initial skepticism, Roberts later seemed persuaded of the uniqueness of health care market.
“Everybody is in this market,” Roberts told the lawyer for the Republican opponents. “So that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they’re regulating is how you pay for it.”
So is it smooth sailing from here? Hardly. We have one more session of oral arguments coming tomorrow on the issue of "severability", or whether the entire Affordable Care Act must be thrown out if the individual mandate is found unconstitutional. The mandate is really the "glue" that holds the Affordable Care Act together and makes the "Affordable" part of it a real possibility, although some legal scholars think the rest of the bill can somehow be reworked without a mandate. It would just be a matter of what on earth can be passed in this Congress.
And of course, it really comes back to that. How much power does Congress have to mandate health insurance and regulate the health insurance market? In looking at what Kennedy and Roberts said today, it seems like they're open to discuss this some more.
As we discussed yesterday, this whole fight that's supposedly about the law has been clouded immensely by partisan politics. We'll just have to see what happens later this week. And we'll have to keep hoping that at least five Supreme Court Justices care more about the letter of the law than raw campaign politics. And yes, I do believe that hope is still quite alive today. Just don't expect the typical media pundits to report on that.