The Obama Administration’s fight to preserve the new health care law’s individual mandate appeared to take a dark turn Tuesday. Solicitor General Donald Verrilli, arguing before the Supreme Court that the government has authority to force individuals to purchase health insurance, faced tough questions from justices, particularly frequent swing-vote Anthony Kennedy, and Chief Justice John Roberts, who was also viewed as a potential vote in favor of upholding the mandate.
Based on Tuesday’s questioning, it seems clear that the court’s ultimate decision will be split. Verrilli, who argued first for a full hour, was peppered with difficult questions from the entire bench, save Clarence Thomas, who stays silent during oral arguments. Verrilli was followed by lawyers Paul Clement and Michael Carvin, who each spoke for 30 minutes and who represent 26 states and a small business trade group suing the federal government over the individual mandate. These two attorneys faced hostile questions almost exclusively from the court’s more liberal wing, signaling that only those four justices—Sonia Sotomayor, Elena Kagan, Stephen Breyer and Ruth Bader Ginsburg—are locks to uphold the individual mandate. A fifth vote could prove elusive, although predicting how the Supreme Court will rule on such a contentious case is virtually impossible, even for the most seasoned court watchers.
Roberts signaled that he’s concerned upholding the mandate could set a precedent allowing for a vast expansion of congressional powers. Would endorsing the government’s power to force individual’s to buy insurance mean “all bets are off” and the government could sink its claws far deeper into health care regulation, he asked. Roberts also questioned the health care law’s requirements for certain services to be covered by the insurance purchased because of the mandate. Why must everyone buy insurance that covers services like maternity and pediatric care, which only certain individuals would ever use, he asked. Kennedy said the health care law’s individual mandate, by forcing individual’s to engage in an “affirmative act” “changes the relationship between individuals and the government in a fundamental way.” Such comments no doubt unnerve the Obama Administration, which is arguing that the individual mandate’s implications are far narrower.
At times during Verrilli’s hour-long oral argument, the court’s newest justices, Sotomayor and Kagan, seemed to steer the solicitor general back to his main points, especially when Verrilli appeared to stray off course under difficult questioning by justices Antonin Scalia and Samuel Alito. Verrilli’s footing, in general, seemed less sure than it was on Monday when he argued—convincingly it seemed—that the Supreme Court has standing to hear the health case this year. In contrast, Clement was interrupted far less and seemed more confident in his arguments. Of course, such superficial observations may mean little. Oral arguments are but a small part of how the Supreme Court decides cases, especially one as complicated as this and for which a record number of briefs have been filed.