Politico with another helpful summary:
Before the arguments, many court watchers said they expected the law would be upheld, and a few even predicted that as many as eight justices would back the constitutionality of the mandate.
However, through their comments and questions Tuesday, the justices signaled they may defy those expectations. After the session, court watchers said a 5-4 decision along partisan lines striking down the mandate was a distinct possibility — harkening back to other politically divisive, sharply divided rulings from the court, such as Bush v. Gore in 2000. …
The aggressive questioning from conservative justices led Tom Goldstein, the publisher of SCOTUSblog and a prominent Supreme Court litigator, to declare that “there is no fifth vote yet” for the mandate.
“The individual mandate is in trouble—significant trouble,” he said. “The conservatives all express skepticism, some significant.”
Noreen Malone at New York:
After today’s Supreme Court arguments over the constitutionality of the Obama administration’s Affordable Care Act, things are looking less than promising for the government’s case, say reporters who watched today’s session. The court’s liberals seem inclined to buy the argument that the law is supported by the commerce clause, but that’s only four justices, after all.
Avik Roy with a reaction roundup at Forbes and his own live blog at The National Review.
Jason Zengerle at New York:
Seen through that lens, Clement has to be feeling pretty good about his experience at the Court earlier today. While he faced tough, bordering-on-hostile questions from the four liberal justices — most notably from Justice Steven Breyer, who seemed to be lecturing more than asking — the two justices who seem most open to persuasion by either side, Kennedy and Chief Justice John Roberts, were far tougher on Verilli. And when they did have questions for Clement, he handled them with aplomb.
For instance, when Chief Justice Roberts challenged Clement’s favorite hypothetical — that if the Court grants Congress the power to make people buy health insurance to solve the health-care crisis, then it can make people buy cars to help the auto industry — by repeating the government’s argument that, unlike the auto market, everyone is already in the health-care market, Clement made a further distinction: “[T]his statute undeniably operates in the healthinsurance market, and the government can’t say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market.”
It was the type of clear, succinct answer that Verilli was unable to give, even to the most straightforward questions like Kennedy’s. During one particularly painful answer to a question posed by Justice Antonin Scalia about why the health-care market was different from other markets, Justice Ruth Bader Ginsburg interrupted the Solicitor General to toss him a life preserver.”Mr. Verilli, I thought that your main point is that … “, she said, going on to answer Scalia’s question herself. “That is definitely a difference that distinguishes this market and justifies this as a regulation,” the grateful Verilli answered.
While it’s undoubtedly premature to say that Obamacare is doomed, as some are now claiming, Tuesday’s hearing suggests that Clement has at least found a plausible path to victory. It also points to one other lesson Clement has learned in the course of arguing over 50 cases before the Court. As he told me, “I think you can take a great brief and still give your case away at oral argument.”
Jonathan Cohn writes about the larger issue of the importance of presidential elections for shaping the judiciary at The New Republic.
But the transformation of the judiciary is a bit more complex. It also reflects a change in who sits on the bench. Republicans have held the presidency for 20 of the last 32 years. They have used that time to populate the federal bench with true conservatives, at least some of whom really do subscribe to these libertarian notions of government—and at least a few whom, certainly, are as politically minded as the Republicans running for president. “The precedents supporting the constitutionality of ACA haven’t changed,” Jeffrey Toobin writes in the New Yorker, “but the federal judiciary, including the Supreme Court, has.”
It’s a reminder, Toobin says, of one reason that presidential elections matter: Over time, presidents can and will remake the judiciary. In the best case scenario for liberals, President Obama will win another term and, finally, break the congressional logjam that’s stalled his own efforts to appoint judges. But that will take time. The moment for health care reform, and perhaps many other causes, is now.
Andrew Sullivan on why he supports the mandate (for what it’s worth, this is basically the same argument that I would make for it) :
But as a principle, having the federal government forcing me to buy something I might not want does rub me the wrong way. But since there are clear collective consequences of my refusal to buy insurance and yet expect adequate treatment if I were to get squished on my bike by a truck, I can see the need for mandatory insurance, as with cars. This is about ending free-riders and ensuring personal responsibility – which is why the individual mandate was once regarded as a clearly conservative proposal.
But my main reason for supporting the ACA is pretty simple. The private sector has been given a chance to show it can deliver healthcare efficiently – and it has failed to such a spectacular extent that government has little choice but to try and prevent this sector bleeding the rest of the economy dry. Compared with more collective, socialized systems, the cost of the US system to achieve the same results is gob-smacking. Hence the cost-control reforms. The private sector, moreover, simply won’t work for someone like me with a chronic condition, who couldn’t get a personal private insurance policy if I tried.
In what other business is the private sector so vastly less efficient than the public? I suspect those businesses where consumers are vulnerable – because they know nothing compared to the seller, or because they desperately need help. Both apply in spades to healthcare.
Ezra Klein interviews Randy Barnett, a Georgetown law professor who has been one of the key legal minds building the argument against the ACA:
Ezra Klein: What did you see as the key moments in today’s oral arguments?
Randy Barnett: There were several major points. Justice Kennedy began the argument by asking — and this somewhat goes to your point — can you create commerce in order to regulate it? That would seem to go beyond the text of the Commerce Clause itself. The second question he posed, and it was dramatic the way he put it, was he asked the solicitor general to assume this was unprecedented, and then said, doesn’t that mean you have a heavy burden of justification if you are changing the relationship of a citizen to the government in this way? That was major. He’s saying this is a new power.
Jonathan Chait at New York discusses one of the underlying disputes behind the debate about the mandate:
A few years ago, I wrote an essay describing what I think is the fundamental difference between economic liberalism and economic conservatism in contemporary American politics. Conservatives are committed to the free market as a value system in a way liberals are not committed to government. Conservatives see small government as an end in and of itself (it inherently promotes freedom) while liberals generally support government only if they believe it to provide concrete benefits. I argued that a lot of conservative reasoning on economics is backward reasoning, beginning with the assumption that markets are correct and then working to fill in the details.
And to end with even more reading, Andrew Sullivan has a rundown of a bunch of other recaps that I haven’t linked above.
