Around about 1 P.M. yesterday, the world collectively and rather seriously lost its mind. Jeff Toobin took to the air to proclaim the end of ObamaCare, the death of the modern Commerce Clause, and war and confusion generally; InTrade shares on ObamaCare’s death soared to 59%; and Lyle Denniston, who unlike Jeff Toobin has actually argued appellate matters, tried in vain to maintain some semblance of calm. Let me now add my own sentiment: settle the eff down.
To anyone who expected ObamaCare’s individual mandate to be upheld by a margin of 7-2 or higher, yesterday served as a rather rude reawakening: Alito and the silent Thomas, at least, are lost votes, and likely Scalia as well. But from it’s a long ways from 6-3 to uphold to 5-4 to invalidate, and there’s no reason to think that yesterday’s arguments bridged that gap.
State of Play
True, Kennedy and the Chief Justice alike beat the U.S. Solicitor General, Donald B. Verrilli, pretty bloody. Kennedy and Roberts focused their abuse on the question of whether the government could articulate a plausible “limiting principle” — a legal idea that stops an exception from swallowing the rule — to restrain whatever expansion of government power the individual mandate entails. This General Verrilli appeared only able to manage after the conspicuous assistance of Justices Ginsburg and Breyer.
And true, Roberts and Kennedy both seemed skeptical of his answers. But only to a point — Kennedy himself closed a question posed to amici by suggesting that he’d been partially persuaded by the government’s position, and had located an appropriate limiting principle by focusing on the uniqueness of the insurance markets, and the government’s decision to limit itself to regulating only method of payment:
The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case. (Tr. 104)
Elsewhere, Kennedy pushed back on respondent’s claim that the government was impermissibly creating economic activity in order to regulate it:
But [the uninsured] are in the market in the sense that they are creating a risk that the market must account for. (Tr. 70)
This should be the takeaway. Regardless of how long it took to get there, General Verrilli managed to convince five justices that the insurance market is unique in a way that may justify otherwise extraordinary regulatory powers; and that the action/inaction distinction is not nearly as problematic as it seems superficially.
Moreover, the Court posed tough questions on all sides. The questioning was remarkable only for its partisanship: during the Solicitor General’s turn, right-leaning justices conspicuously attacked, while left-leaning justices conspicuously defended. During respondent’s turn, the position reversed. And throughout, Kennedy and Roberts played both sides. If we can draw hints from argument — a practice indulged in by court-watchers more for sport than out of any expectation of accuracy — we start to see a four-Justice bloc to sustain (Breyer, Ginsburg, Kagan, Sotomayor); a three-Justice bloc to invalidate (Alito, Scalia, Thomas); one weakly left-leaning swing vote (Kennedy); and one weakly right-leaning swing vote (Roberts).
Ego and Guesswork
If that is the state of play, Jeff Toobin’s grim forebodings don’t make a bit of sense, especially given the theories he’s put forward about how the Court operates. Recall that Toobin sees Kennedy as something of an egomaniac, a justice who loves his position as the swing vote, and tends to deploy it to maximize his own importance. If Kennedy wanted to see himself go down in history as ObamaCare’s savior, defender of the progressive movement in its most desperate hour, this is exactly how he would conduct himself at argument. Query, too, whether Kennedy wants his enduring legacy to be as the man who took the Commerce Clause to the right of even Rehnquist; or as the architect of the keystone decision that finally brought stability to twentieth century Commerce Clause jurisprudence. Either way, it’s one for the history books. But which makes a better story?
The Role of the Chief
Moreover, if Kennedy breaks left, there’s reason to suspect he’ll draw Chief Justice Roberts with him. If Roberts sees the Court voting to sustain, there’s no practical reason for him to stick to his principles and vote with the conservative minority when, by switching sides to vote with a liberal majority, the Chief could both assign the opinion to a Justice he can trust to minimize the decision’s doctrinal effect, and build the Court’s legitimacy by preventing yet another controversial case from dividing 5-4 on partisan lines.
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Yesterday’s arguments proved that the case won’t be as easy as it should be, doctrinally. But did we really expect anything different with this Court?
Vetiver, “Wonder Why?”