SCOTUSblog Updates
The argument is done
By Tom Goldstein on Mar 27, 2012 at 12:08 pm
A quick update from the steps. 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.
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Audio update from TomBy Tom Goldstein on Mar 27, 2012 at 11:44 am
I stepped out of the oral argument to provide this audio report (at bottom of page).
For those who prefer reading, here is a summary of the report:
Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble. It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli. On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions. Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden. At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality.
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Posted Tue, March 27th, 2012 10:52 am
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Mid-argument update (with audio)
(10:52am) – I left the Court to provide this update. We are halfway through the mandate argument; the SG is done. It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant. They doubt that there is any limiting principle. But we’ll know much more after the other side goes because arguments are often one-sided like this half way through.
(11:32am) – Amy Howe has stepped out to provide an audio update (at bottom of page).
For those who prefer reading, here is a summary of Amy’s report:
In the first hour of the Supreme Court oral arguments relating to the constitutionality of the individual health insurance mandate, Solicitor General Donald Verrilli took the podium. The good news for Verrilli, the government, and the supporters of the mandate is that the four liberal Justices asked relatively few questions, and the questions were largely friendly. The bad news is that there is no apparent fifth vote in support of the constitutionality of the law. When the Solicitor General argued that the mandate does not require people to purchase health care, but instead merely regulates when and how they will pay for that care, Justice Kennedy seemed skeptical, asking whether Congress’s power to regulate commerce allows it to create commerce to then regulate. Other conservative Justices – Chief Justice Roberts, and Justices Scalia and Alito – also seemed skeptical of the government’s arguments, focusing on whether there is a limiting principle: they wanted the government to explain whether Congress can force individuals to buy things other than health insurance, including cars and broccoli, or whether the government can require that individuals exercise. It will be interesting to see whether the Justices’ questions for the health care challengers reveal anything different about their inclinations. |
