The Supreme Court this Tuesday arguments on the constitutionality of the law's mandate that every American have health insurance.
The five conservative justices relentlessly questioned Solicitor General Donald B. Verrilli Jr., who defended the law. Justice Antonin Scalia asked whether upholding the mandate would mean that Congress could require everyone to exercise. Justice Samuel Alito asked whether the mandate wasn't really a disguised subsidy of sick people by healthy people. Chief Justice John Roberts asked whether a mandate to purchase health insurance you may need some day was any different from a requirement to buy a cell phone for use in a possible emergency. Alito asked whether the government could force Americans to buy burial coverage, since it is something everyone will eventually need.
On the other hand the four liberal justices including Justice Ruth Bader Ginsburg noted that people who don't buy health insurance impose costs on everyone else. Justice Elena Kagan observed that the mandate merely requires prepayment for health care that everyone will eventually use, and you can't get insurance once you are sick. The liberal justices used several occasions to make Verrilli's arguments for him. Justice Stephen Breyer asked whether Supreme Court precedents didn't already uphold Congress' power to create new forms of commerce, like a health insurance market. Kagan observed that healthy people who subsidize insurance for the sick will one day become the subsidized themselves. But the liberals are outnumbered on the court 5-4.
The balance rested on Justice Anthony Kennedy, who has often cast the swing vote in decisions that split on ideological lines. But Kennedy seemed just as skeptical of the mandate as the other conservatives. He described it as “unprecedented” and saw a “heavy burden of justification” to uphold it under the constitution.
Former Solicitor General Paul D. Clement, arguing against the law for the 26 states that brought the challenge, faced an opposite constellation of questions. The four liberals asked the most, led by Breyer, who asked him repeatedly to respond to different justifications for the mandate. The conservatives were much quieter, with Scalia and Alito, in particular, asking Clement very little.
The Supreme Court is not expected to rule on the U.S. healthcare law's contentious individual mandate for another three months.
While no one would predict a final ruling, some Republicans appeared jubilant over signs of an ideological split that could position the court's 5-4 conservative majority in opposition to the mandate. “Based on my reading of the ... hearings today, it is doubtful that the individual mandate will survive,” Senator Mike Lee of Utah said in one of several Twitter messages Senate Republicans issued after Tuesday's hearing concluded.
But advocates of the healthcare overhaul saw a silver lining, saying the tone of the justices' discourse appeared to favor the law. “There was a majority of the court in favor of upholding ... the individual mandate,” said Doug Kendall of the liberal Constitutional Accountability Center.