I feel kind of bad that I haven’t posted anything about the ongoing Supreme Court trial. Judging from today’s oral arguments, it’s going to be a 5/4 decision, but which way it goes depends on Justice Kennedy.
Most folks seem to feel that the Solicitor General, arguing for the Obama administration, really blew it today. But it’s questionable how much that matters — will Kennedy really base his decision on what he heard today, or will he rely on briefs and private discussions with the other Justices and his clerks when making up his mind?
Doug at Outside the Beltway nicely sums up what happens next:
Talking heads and legal analysts will be quick to make predictions about what today means for the ultimate outcome of the case. For the most part, they’re just going to be guessing. The first votes on all of the issues that the Court is hearing this week will take place at the Court’s private Friday Conference at which they will discuss the case, take voters, and assign opinions. That may not be the end of the process, though, because the process of writing the opinions that takes place over the next three month will also be an effort by the one or more Justices to convince their brethren, most specifically no doubt Justice Kennedy, to join their side of the argument. It’s entirely possible that the side that’s in the majority at the end of the day on Friday will find itself in the minority at the end of the process. Or, they may be no changes at all. We really won’t know the answer to that question until the last day of the Court’s term most likely.
There are a few things we can probably say today, though. Based on the transcript it would seem that any hope that the pro-mandate forces had of drafting Justice Scalia onto their side by raising arguments that relied heavily on his concurring in opinion in Gonzalez v. Raich would seem to be out the window. Scalia, Alito, Thomas and probably Roberts all seem firmly inclined to strike the mandate down. That leaves the case, as we suspected all along, in the hands of Justice Kennedy. If he ends up voting in favor of the mandate, he would end up being the most senior Justice of the group and could assign the opinion to himself. Depending on how he argues the issue, he might be able to persuade Chief Justice Roberts to join him to make it 6-3. However, if Kennedy joins the conservatives in voting to strike down the law it seems unlikely that he’d be able to bring any of the other four along with him. So, we’d end up with a 5-4 decision striking the mandate down. The final thing that’s clear is that the individual mandate is in far more danger than its advocates may have originally thought, and that its fate now hinges on the vote of one man. That’s a shaky precipice to rest upon.
Tomorrow is the final day of oral argument. In the morning, the Court considers what may indeed end up being the most important issue of the week. Assuming for the sake of argument that today’s argument was an indication that the mandate will be struck down, tomorrow morning’s argument considers the question of what then happens to the PPACA as a whole. One wonders if Justice’s Kennedy’s opinion on the mandate will, in the end, be influenced by the question of whether striking down the mandate means the Court must also strike down the entire PPACA.
Andrew Sullivan has a great selection of quotes from today’s blogs.