The Supreme Court on Tuesday, March 27 heard oral arguments on the most pivotal issue concerning the implementation of the health care reform legislation. The issue before the Court on Tuesday concerned the constitutionality of the individual mandate that is at the heart of the recent legislation (i.e., the obligation imposed on all covered individuals, effective in 2014, to either purchase health care coverage or pay a penalty for refusing to do so). This was the sole issue before the Court during two hours of oral arguments. Although other issues are being reviewed during three days of oral arguments, this clearly was the main event.
For weeks leading up to the oral arguments, leading legal pundits appeared in the media and on panel discussions offering a preview of what we should expect during these important arguments. To this author’s ear, the pundits left two major impressions. A large majority of them seemed to believe that it was unlikely that the Court would strike down the individual mandate. Of course, that prediction still may be correct. In addition, those same pundits cautioned about reading too much into the questions asked by the justices during the arguments. To this observer, that seemed like sage advice—until I noticed that several of those same pundits were out and about after the arguments commenting on the possible fate of the mandate largely based on what many perceive (with considerable justification I might add) as intensely probing and challenging questions posed by members of the so-called conservative wing of the Court. So what are we to believe?
It might help to first review what we know to be facts about the oral arguments before the Court on the individual mandate. First, we know that there were oral arguments before the Court on the individual mandate. I probably should stop there. However, there are a few other facts or strong probabilities that bear mention. Justice Thomas maintained his by now time-honored tradition of not asking any questions during the oral argument (those same pundits fairly unanimously predict Thomas will vote to strike down the individual mandate). One strong probability relates to the likely votes of the members of the so-called liberal wing of the Court (including Justices Breyer, Ginsburg, Sotomayor and Kagan). Going into the argument, it was universally assumed that this group of justices would support the constitutionality of the individual mandate. The tenor of their comments and questions during the argument only reinforce and actually strengthen that assumption. In fact, some of the commentators present for the argument actually thought some of those justices were more forceful in their support of the mandate than was the principal lawyer representing the position of the federal government at the argument in support of the individual mandate. Commentators have suggested that if people were out turning cartwheels after this day of argument, then they assuredly were opponents of the individual mandate (although truthfully I have yet to see anyone involved in the case actually turn a cartwheel under any circumstances!).
We are left with many uncertainties in the wake of the oral argument related to the individual mandate. The fate of that mandate (and to some extent the overall effectiveness of the entire legislation, assuming it is not itself struck down) directly depends on how those uncertainties play out over the next few months as the justices deliberate on the case. As has been true with many cases over recent years, Justice Kennedy is a key player in this drama. The same may be true with Chief Justice Roberts. No doubt causing a chill down the spines of proponents of the law, early in the argument Justice Kennedy reflected at least some doubt when he questioned whether the mandate might be “a step beyond what our cases allow.” However, when later questioning the principal lawyer for the states challenging the mandate, Justice Kennedy seemed to concede that a comprehensive solution to the country’s health care problems might be necessary. Some interpret comments made by Chief Justice Roberts, who also noted the uniqueness of health care, as suggesting he also is wrestling with these opposing concerns. While surprises always are possible, questions raised by Justices Scalia and Alito suggest they are not burdened by these uncertainties and that they likely will vote to strike the mandate. If, as most assume, the four liberal members of the Court vote in favor of the mandate, then either Kennedy or Roberts, or both, will have to vote in favor of the mandate for it to survive. To me, there is insufficient information generally available to make even an educated guess one way or the other.
The Court addresses two issues concerning the health care reform legislation on Wednesday, the last day of scheduled arguments on the health care legislation, including (a) whether the entire health care reform legislation must be invalidated in the event that the individual mandate is struck down and (b) whether the provision of the legislation that expands the Medicaid program, and thus increases the financial burdens imposed on the states under that program, is constitutional. After that, we all shift into waiting mode as the Court is expected to render its decision by the end of its current term in June. ( (If you’re interested, you can listen to Tuesday’s Oral Arguments or view the transcript on the Supreme Court’s website.)