Even before she changed her mind, Lithwick realized that the argument itself would matter little, guessing instead that Roberts would cynically vote to uphold the law in order to avoid being seen for what he really is: a very conservative jurist intent on dismantling post-New Deal law. But many liberals — myself included, as much as I hate to admit it — wanted to believe that logic, coherence and precedent might actually persuade these sage “umpires,” as Roberts described himself during his Senate confirmation hearings, to think the issue anew. It’s almost touching how much faith liberals have in reasoned argument. And it’s a good thing, too. Reasoned argument is a hallmark of our Enlightenment antecedents. Better to think (if not write) like Kant than, say … oh, let’s not mention Hitler, he’s overused, but how about Mussolini?

But there is little reason to believe that the Court’s justices share this faith. The Court has moved ideologically to the right in recent years, and it is ever more likely to adjudicate cases accordingly. In a 2009 study from the Journal of Legal Analysis, based upon an analysis of a voluminous database of Supreme Court cases dating back to 1937 (and similar database of cases from the Court of Appeals), Richard Posner and William Landes find that four out the five most conservative judges to serve on the Court since then are there right now: the four acknowledged conservatives, Roberts, Scalia, Thomas and Alito (the other is former Chief Justice William Rehnquist). In fact, the “moderate” conservative, Anthony Kennedy, is No. 10 on the historical list of Court conservatives. By contrast, only one current Court member makes the top 10 of liberal rankings, Ruth Bader Ginsburg, at No. 10.  And Posner and Landes go on to note that, in general, “ideology matters more” in the Supreme Court cases than it does in Court of Appeals cases.

In a 2010 article in the Missouri Law Review, Carolyn Shapiro attempts to measure, via an analysis of selective cases from the Rehnquist Court, what factors impact the “ideological salience” of a given Court decision, i.e., how predictably votes are based upon the ideological predisposition of the justices.  Shapiro doesn’t wish to overstate the role of ideology, but she does demonstrate that it is at its most predictive when a case is most ideologically “ordered.” In other words, the justices vote pretty much how outside observers would expect them to when a case is publicly prominent. So while ideology is not the only factor that points to how justices will vote, justices are prone to reach a result that matches their worldview in controversial cases.

Really, this is all almost painfully banal, isn’t it?  As Posner and Landes note, numerous studies, including their own, make the unassailable point that justices appointed by Republican presidents vote preponderantly as conservatives, and those appointed by Democratic presidents vote preponderantly as liberals.  The well-known exceptions to that rule (David Souter, Byron White) are just that — exceptions that prove the rule.

Moreover, since the early 20th century, scholars and judges have frequently noted that judicial decisions can never be separated from the politics of the nation or the politics of the judges themselves. The law is saturated in the “real life” relationships of power in which it resides.  A bald example of this came on Day 3 of the oral arguments when Justice Kennedy, in the event the individual mandate was struck down, poignantly brought up the plight of the insurance companies. Kennedy mused that, “We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. (emphasis added).”  Neither Kennedy nor his Republican-appointed colleagues commented on the “risk” that might be faced by the millions of newly enrolled health insurance recipients.

Still, we liberals hope that the power of an argument might win the day (and thus we criticize Don Verrilli, the administration’s advocate, as if he were Bill Buckner booting an easy grounder in the World Series — if he had gotten it right, we would have won!).

And, yes, the power of a reasoned argument can be very illuminating.  I just cited a couple of reasoned, scholarly arguments myself.  Reason is a good thing. Five liberal Supreme Court justices are better.  And that is, you know, kind of a reasoned argument, too.

The most extreme view was that of Justice Antonin Scalia: “My approach would be to say that if you take the heart out of this statute, the statute’s gone.” But that approach runs into the obvious difficulty that this huge bill contains provisions that have nothing to do with the mandate, such as improvements in Native American healthcare and the extension of benefits for black-lung victims. Pulling apart the obviously irrelevant bits is a huge task. Justice Stephen Breyer asked, “What do you propose that we do other than spend a year reading all this?” Even Scalia got a laugh when he asked, “You really want us to go through these 2,700 pages?”

Edwin Kneedler, arguing for the United States, pointed out that some provisions are already in effect without the mandate: 2.5 million people under 26 have gotten new coverage, for  example. Scalia speculated that this was in anticipation of the mandate, and would otherwise bankrupt the insurers, but Kneedler and Justice Sotomayor both pointed out that this is lousy economics: Those healthy people are a net benefit for insurance companies.

The complexities of severability may actually strengthen the case for the mandate, as Lyle Denniston pointed out, because they show what a huge task the Court would be taking on if it struck down the mandate. Scalia’s extreme position, if he sticks to it, may also help the mandate in another way, by convincing the other justices that he’s nuts and will say anything to strike down the ACA.

The federal spending issue turns on the expansion of Medicaid. Under the ACA, millions of the working poor – people with incomes up to 133 percent of the federal poverty level – are eligible for Medicaid. From 2014 to 2016, the federal government will pay 100 percent of the costs. Then its share decreases, to 90 percent after 2020. Because the ACA also gives states assistance with their new administrative costs, overall state spending will actually be lowered.

Twenty-six states are claiming that this conditional spending unconstitutionally coerces them, because they cannot realistically forgo the money, and because if they refuse to expand their rolls, they might lose every cent of Medicaid money. But let’s be clear: This is not about the states wanting to conserve their own money. It is about the states refusing to spend federal money, to help people that they do not want to help. (Paul Clement, the attorney for the challenging states, declared that his argument would not change if the federal government permanently paid 100 percent of the costs.)

As a legal matter, this is the craziest argument yet, which is why it was rejected by every lower court that heard it. It implies that, when states get federal money, they have a right to spend it any way they want, with no federal conditions.  It means that Medicaid itself has always been unconstitutional, along with federal unemployment benefits, highway funds, education funds and many other programs. Justice Breyer repeatedly pointed out that the provision in the Medicaid statute that is being challenged has been there since 1965.

Yet the conservative justices took it remarkably seriously. Because the federal government “has the authority under this provision to say you lose everything,” Chief Justice John Roberts declared, “it seems to be a significant intrusion on the sovereign interests of the state.” Justice Anthony Kennedy said, “There’s no realistic choice.” Justice Scalia offered the astounding claim that “if you predict … that 100 percent of the States will accept it, that sounds like coercion.” If this is right, then if I offer 10 people triple their salaries to come work for me, and I can confidently predict that they will all accept, I am coercing them.  Alito endorsed the same idea, and also thought it relevant that the money “is going to have to come out of the same taxpayers that the States have to tax to get their money.”  That would mean that the federal tax code is itself an invasion of states’ rights. How long must we keep a straight face when presented with this stuff?

There was a legitimate basis for the Court to consider many of the issues raised by the healthcare law, since they had divided the lower federal courts and the law needed clarification. But the Medicaid claim created no division: Every lower court agreed that it was without merit. (Just how meritless is explained at length in a characteristically lucid piece by Marty Lederman.) Even the most preposterous arguments are magically elevated to respectability if they are arrayed against the ACA.

The Medicaid issue also calls attention to the political decisions that were made here – the decision of all those Republican officeholders to join this litigation. Why would you work so hard to deny decent medical care to working poor people in your own state? Political warfare evidently produces collateral damage. Obama owns the healthcare bill, so anything that can gum up its works is a Republican victory – and all 26 of the state challengers, attorney generals and governors, are Republicans. But all those working poor people are not Democratic Party operatives. They are ordinary folk trying to get by. The decision to pursue this litigation displays a calculated viciousness and cruelty that we have not seen in American politics in some time. It is like getting back at my enemy by hurting his children or his pets.

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Rose’s invocation of Roe as a parable for Obamacare is emblematic of conservative confusion and hypocrisy when it comes to the law. Roe enshrined a woman’s right to be free from interference from the government in choosing an abortion — a medical procedure. Yet the right to be free from government “tyranny,” as Tea Party activists call it, is the same principle that animates conservative opposition to imagined “government bureaucrats” writing the rules on access to care. You wouldn’t want the government telling you what to do with your body, would you?

The one exception, of course, is the space between a woman’s vagina and her ovaries.  Anti-choice activists, like conservatives broadly, argue the Affordable Care Act’s individual mandate is unconstitutional because it infringes on individual freedom to choose one’s own healthcare, but women’s reproductive care is another matter. It’s not a coincidence that renewed conservative hostility to women’s health has coincided with the movement’s mobilization against Obama’s healthcare reform. In the three years conservatives have been fighting against Obamacare, first in Congress and now in the courts, anti-choice activists also have been using the power of state legislatures to make it more arduous, more invasive and more humiliating to seek an abortion. Then there are the so-called Personhood laws, as well as a proposed federal law, heralded by conservatives as freedom-loving, that would grant equal protection rights under the 14th Amendment to the Constitution to fertilized eggs, thus elevating the freedom of a zygote above that of a woman.

Much of this energy has come as a result of opposition to Obamacare, which, the anti-choice movement claims, contrary to reality, is a huge expansion of abortion rights. Ellen Staniszewski, a demonstrator outside the Supreme Court on Tuesday, believed “because I’ve read the whole law” that “death panels” will result in more abortions. That’s because — being death panels, after all — she believed imaginary grim reapers masquerading as bureaucrats would order women to have abortions rather than carry a pregnancy to term.

Obamacare, claims Americans United for Life president Charmaine Yoest, is “the largest expansion of abortion since Roe v. Wade.” Why? Because, Yoest argues, insurance plans that cover abortion will be permitted to participate in the federally subsidized insurance exchanges, assuming it’s permitted under state law. Never mind that women receiving subsidies would have to pay a separate premium for abortion coverage out of their own pockets. Because such insurers must, under the law, assess a $1 per month surcharge on all enrollees in the plan, Rep. Chris Smith, R-N.J., and anti-choice activists complain that this constitutes taxpayer funding for abortion.

In fact, this dual-payment system was designed to ensure that no taxpayer funds were used to cover abortion. “To really ensure private funds are dedicated to abortion coverage, the insurers are not allowed to take into account the cost savings of abortion and must assess a minimum of $1 for the abortion premium,” says Jessica Arons, director of Women’s Health and Rights Program at the Center for American Progress. “So it’s actually a ‘protection’ against taxpayer funding of abortion. It just shows once again that you can never satisfy the anti-choice movement.”

Rather than forcing an expansion of abortion, Arons adds, the law may actually lead to a decline in private insurers covering abortion, because it “adds new administrative hurdles to obtaining abortion coverage and invites states to ban abortion coverage.” What’s more, she says, because more women will be eligible for Medicaid under the law, “a whole new class of women will now be subject to the Hyde Amendment’s ban on abortion coverage for women enrolled in Medicaid.”

Yet for Staniszewski, who regularly demonstrates outside of a suburban Washington abortion clinic as part of the 40 Days for Life movement, Obamacare may be more important than Roe, because it “not only funds abortion but pushes abortion.”

The contraception coverage requirement, Staniszewski told me, turning the language the pro-choice movement has used on its head, is a “war against women.” The coverage of contraception, she said, detailing yet another bizarre, conspiratorial scenario, “will make our young ladies and young boys — it will turn them into animal sex objects if you tell them if they can have free contraception in the first, second and third grade, they’re going to be having sex early on, ‘til they’re going to be covered in sexually transmitted diseases, until they have abortion after abortion, until they no longer have any respect for their own body and life.”

“This is a revolution,” Rose told an interviewer at the “Stand Up for Religious Freedom” rally outside the Department of Health and Human Services headquarters last week, one of 140 simultaneous demonstrations nationwide. “This is an act of tyranny by our government,” Rose insisted, vowing, “This is just the beginning. We will not comply.”

This revolution, if it is indeed one, is about a reactionary notion of freedom — one that elevates certain religious views above others, and demands that the government impose, or least acquiesce in imposing, certain religious views on citizens.

Even if the Court strikes down the individual mandate, activists won’t let up on this culture war for “freedom” from the government. In fact, they may be emboldened.

Staniszewski was straightforward about why. The government, she maintained, shouldn’t get to make decisions that “should only belong to God.”