The verdict is in: The individual mandate at the heart of President Obama’s healthcare law is not long for this world.
At least that seemed to be the early consensus of the journalists who were allowed to witness the second day of Supreme Court arguments over the constitutionality of Obamacare on Tuesday. Even before the proceedings wrapped up, they began spreading the word that Obama’s solicitor general, Donald Verrilli, had seemed ill-prepared and incapable of defending the law against an onslaught of pointed questions from skeptical justices, and that the critical swing voter on the court – Anthony Kennedy – had all but stated that he considers the mandate unconstitutional.
CNN’s Jeffrey Toobin branded the proceedings “a train wreck for the Obama administration" and predicted that “this law looks like it’s going to be struck down,” while Mother Jones’ Adam Serwer declared on Twitter that “If the justices decided the constitutionality of laws on performance, Obamacare would go down like a flaming zeppelin.” Mike Sacks of the Huffington Post said that opposition to the law seemed “almost unequivocal” from Kennedy, whom Toobin called a “lost cause” for the administration.
It’s worth keeping in mind that all of this alarmism may well amount to nothing.
The stakes of this case and the court’s notorious opacity encourage tea leaf-reading and overreaction. It’s clear from objective reports from inside the court that the administration was repeatedly put on the defensive by Kennedy, Antonin Scalia, Samuel Alito and Chief Justice John Roberts. Along with Clarence Thomas, who rarely speaks but almost always sides with his fellow Republican-appointed justices, they form the court’s conservative majority – with Kennedy the most likely to break ranks. So it’s noteworthy that they (and Kennedy in particular) exhibited such aggressive skepticism. The individual mandate won’t stand unless at least one of them sides with the administration.
But Tuesday may not actually have been as disastrous for the administration as the initial tweets and reports suggested. Lyle Denniston, who is covering the case for the estimable SCOTUS Blog, believes that Kennedy ultimately showed an openness to supporting the mandate:
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.
Nor do we know exactly why Kennedy, or any other justice, asked the questions he asked, or whether he found value in the answers he heard back that wasn’t obvious to others in the room. We also can’t be sure what precise criteria he’ll use to make up his mind. Recall that just yesterday there were suggestions that Roberts had actually demonstrated an openness to declaring the mandate constitutional on grounds that lawyers from neither side had explored.
Audio recordings are now available, so you can judge for yourself whether today really was a "train wreck" for the law. Keep in mind that it’s also possible that all of the justices made up their minds long before today’s arguments, meaning that Verrilli – if he really performed as terribly as firsthand observers are saying – might not have actually blown the case, no matter how badly he did.
The court isn’t expected to rule for months, maybe not until late June. It’s entirely possible that the mandate will be thrown out, but it’s all still guesswork until then.