I’l be writing in more detail later this week after all of the arguments are done but I thought I’d comment a little on the hearing today.
The discussions today centered on the issue of the individual mandate and whether or not the Constitution allows the government to, in effect, force people to purchase health insurance.
Safe to say the arguments went about as expected, with the four liberal leaning justices sounding supportive of upholding the mandate while the four conservatives seemed skeptical of it.
This of course leads to the title of this post, that we have a one man Supreme Court named Anthony Kennedy. Absent the possible twist of Scalia voting to uphold the mandate (based on his writing in a case upholding a federal drug law) or one of the liberals voting to strike (there is a slim chance based on some past rulings that Breyer could) then the decision is basically up to Kennedy.
Most of the media reports out today are focused on the fact he seemed to question the validity of the mandate but there are a couple of cautions to take with that.
First, never ever try to guess the mind of a judge based on what they say in court. I have fairly limited courtroom experience but even I have had cases where I was sure they were going to rule against me and they turned around and ruled in my favor.
Second, there was a comment he made right at the end of argument where he mused on how the problems stemming from the unique problems associated with health care. This could also be significant, thoug again rule #1 tends to apply.
One all three days of argument are done I’ll be reviewing the transcripts and gathering my thoughts for some more detailed posts but at this point I’d say that things lean slightly in favor of the mandate being upheld. If not the next most likely outcome is the application of the TAIA (as discussed yesterday).
But we’ve got another day of discussions to go and even though the mandate argument is done that doesn’t mean that tomorrows discussion won’t be significant to (focusing on issues of severability and the expansion of Medicare)
So did any of you listen to or read the discussions ? Any thoughts ?