A grilling by U.S. Supreme Court justices, a lot of skepticism at the central pillar of Obamacare, followed by a loud gulp among supporters of President Barack Obama’s signature healthcare law.
The morning-after consensus is that Tuesday’s U.S. Supreme Court session went badly for the Obama administration and could spell trouble - even the end - for Obamacare.
As the U.S. Supreme Court starts its last day of hearings Wednesday on the healthcare law, here is why some legal experts and observers think the ‘individual mandate’ - which requires all Americans to buy healthcare coverage by 2014 - could be struck down when the court delivers its decision in June.
CNN legal analyst Jeffrey Toobin arguably gave the most strident and gloomy take on Tuesday’s hearings:
“This was a train wreck for the Obama administration. This law looks like it's going to be struck down. I'm telling you, all of the predictions, including mine, that the justices would not have a problem with this law, were wrong. Justice Kennedy, the swing vote, was enormously skeptical.
“Justice Alito, Justice Scalia were constantly skeptical. Justice Thomas didn't say anything, but we know his position on the issue. The only conservative justice who looked like he might uphold the law was Chief Justice Roberts, who asked hard questions of both sides.”
Carrie Severino of National Review Online writes the Bench Memos blog examining judicial news and analysis, and focused on the lawyer making the federal government’s case:
“Solicitor General Verrilli had a rough start to his argument, speaking haltingly, stumbling, and stopping to take a drink. The solicitor general spent almost all his time trying to convince the justices that health care is, in fact, different from other markets. While Justices Ginsburg and Kagan were trying to throw him soft balls, Verrilli kept striking out with Justices Scalia, Roberts, and Alito, and to some extent, Kennedy.
“[Tuesday’s]argument indicates that those predicting a lopsided decision in favor of the mandate should start getting used to disappointment, and those who value their constitutional protections have good reason for optimism.”
Tom Goldstein writes for the Supreme Court of the United States Blog, and has argued cases before the Supreme Court. He stepped out of Tuesday’s hearing to make an audio recording, which he later transcribed:
“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.”
Mr. Goldstein, at the end of Tuesday’s hearing, suggested from the steps of the Supreme Court that there might yet be a slight glimmer of hope for Obamacare, pointing to the court’s swing vote:
“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.”
The Washington Post’s Eva Rodriguez specializes in legal affairs, and was also at Tuesday’s Supreme Court hearings. Like Mr. Goldstein, she saw a ‘softening’ of positions by the end the hearing:
“Both Chief Justice John Roberts and Justice Anthony Kennedy were obviously troubled by the prospect of an all-powerful federal government. ‘All bets are off,’ Roberts said, if the court signs off on Congress's constitutional power to force individual purchases of health insurance.
“Both also seemed at points receptive — albeit grudgingly — to arguments that the market for health care is unique and requires special consideration. Kennedy in particular seemed to soften near the end of the hearing, acknowledging the problem of the millions who are uninsured and pondering out loud about how the government could address that.
“Predicting how justices will vote is always risky business. But I'd say there is still a good chance that the mandate is upheld by a 5-4 or 6-3 vote, with Kennedy in the majority in the first scenario and Kennedy and Roberts part of the six-justice majority in the latter.”
Those kinds of optimistic predictions were more common on Monday, when the Supreme Court hearings got underway. But Tuesday’s hearing was clearly a turning point for many observers. The news web site Politico’s health-care reporter Jennifer Haberkorn and editor David Nather were skeptical that the federal government could get a majority of support among the nine judges:
“Before Tuesday, most legal analysts seemed to agree that the Supreme Court would probably uphold health care reform’s individual mandate — even if the conservative justices had to hold their noses to do it.
“Just minutes into the oral argument Tuesday, that conventional wisdom fell apart.
“All of the conservative justices asked such tough questions about the individual mandate during Tuesday’s arguments that it’s no longer clear that the Obama administration can get a fifth vote to uphold it.”