The instant conventional wisdom, embodied by Jeffrey Toobin, is that today’s oral arguments in Florida v. HHS indicate that Obamacare is very likely to be overturned. But this might be a bit overstated. To be sure, anyone who said that this would be an easy case for the Obama administration to win (I’ve seen predictions of 6-3 or even 7-2 decisions upholding the law) looks pretty foolish; there are pretty clearly four votes in favor of overturning the individual mandate. This includes Chief Justice John Roberts, thought to be a potential swing vote; see Phil Klein’s persuasive analysis of how Roberts framed his questions.
And Solicitor General Donald Verrilli’s performance was indisputably disastrous. I assumed the repeated sentence in his opening statement was a transcription error when I read it, but the audio confirmed that it was an actual stumble, and not the only one. This is the guy who represents the President’s position before the Supreme Court? The nervous stammering was actually the least of his problems; the liberal justices in several instances resorted to interjecting with the legal arguments that Verrilli was suppposed to be making.
That said, those interjections did indicate that the liberal wing of the court has four solid votes. As for swing-voter Anthony Kennedy, he can be pretty hard to gauge. Orin Kerr, who clerked for Kennedy, analyzes what Kennedy said at today’s argument, writing that
Kennedy seems to be of the view that requiring a mandate under the Commerce Clause requires a ‘heavy burden of justification,’ and that his major question is whether the uniqueness of the health care market satisfies that heavy burden…
Reading the tea leaves, it sounds like Justice Kennedy accepts the basic framework of the challengers that mandates are different and especially troubling. Instead of saying that mandates are therefore banned, however, Justice Kennedy would require the government to show some special circumstances justifying the mandate in each case.
It’s not clear whether or not Kennedy will conclude that a health insurance mandate will pass constitutional muster or not. In fact, he’s mercurial enough that even if we knew which way he’s leaning today, we still wouldn’t know for sure what his ruling will be; in Planned Parenthood v. Casey, Kennedy voted to strike down Roe v. Wade at the Justices’ conference two days after oral argument, but then changed his mind and provided the fifth vote for upholding Roe. As in Casey, we face a circumstance where a major issue will most likely be decided by one man’s vote.
It’s Anthony Kennedy’s world; we’re just living in it.