THE WAITING GAME
Apr 16, 2012
Legal pundits, on a quest for eyecatching headlines, didn’t hesitate to make bold predictions in the aftermath of the Supreme Court’s health care arguments. “Justices poised to strike down entire health care law,” one major publication wrote. Another went with this not-so-subtle headline: “Health Reform in Supreme Court: End of Affordable Care Act?” And a leading television commentator said simply: “The individual mandate looks pretty doomed to me.”
My response: Not so fast.
Sure, the court had tough questions for the government, and several conservative justices seem like locks to vote against the individual mandate. But at least one vote the law’s challengers absolutely must have to win – Justice Anthony Kennedy’s – appears far from certain. And even if the mandate were to fall, that would leave a big question looming: What to do with the rest of the law? On that point, the court offered no clear signals.
I attended oral argument and wrote about it for the AHA. It was a three-day whirlwind: Each day began with a five-hour wait to squeeze into the courtroom, followed by an hour of politico-watching – at one point NPR’s Nina Totenberg and NBC’s Pete Williams were standing beside me whispering to each other, “There’s Mitch McConnell! And Eric Holder! And what about Sebelius? Is Sebelius here?”– several hours of argument, and then a mad rush to craft timely summaries. The dust has now settled. Here, with the benefit of a few days to reflect, are my bottomline takeaways.
Don’t believe everything the justices say. Some of those covering the argument were quick to take the justices’ questions as clear signs of how they’ll vote. That is a dangerous game. The trouble is that judges don’t always show their hand at oral argument. They will sometimes play devil’s advocate; other times they’ll ask tough questions of the side they support to test the soundness of the arguments; other times they may genuinely be on the fence. All of that said, some of the justices’ questions on the individual mandate so clearly favored one side – and so clearly reflected the justices’ long-held positions on the legal issues – that it’s safe to make some predictions. It seems clear, for example, that the Court’s four Democratic appointees (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) think the individual mandate is constitutional. It also seems clear that Justices Antonin Scalia, Samuel Alito, and (probably) Clarence Thomas think it is not. Which leads to my second point. . .
Justice Kennedy is the key. Justice Kennedy is often called the court’s “swing vote” – the most moderate justice amid four reliable conservatives and four reliable liberals. Many pundits focused on Kennedy’s comments that the mandate is “a step beyond what our cases have allowed” and that it “changes the relationship of the federal government to the individual in a very fundamental way.”
That suggested, they said, that he’ll vote to strike the mandate down.
But Kennedy offered comments of a very different stripe later in the argument – comments that may hold the key to the case. When the plaintiffs’ lawyers stood up, Kennedy twice asked whether “the young person who is uninsured is uniquely proximate to affecting the rates of insurance and the costs of providing medical care.” Translated into English, Kennedy was suggesting that non-participants in the health insurance market – i.e., “the young person who is uninsured” – may nonetheless be connected to that market in a way that isn’t true...
Topic: Advocacy and Public Policy