Again, I’m jotting down some of my initial reactions to the second day of oral arguments in the ACA cases. Apologies in advance for typos! Here’s what struck me:
• By and large, no new arguments popped up today. Not that we’d really expect that to happen but I was a little surprised at how everything we heard today has been discussed at length (some might say, ad nauseum) already. Some of that discussion occurred in the lower court cases and some of it outside of the courtoom during press events.
• Kennedy is definitely the key vote on this. I think most Supreme Court followers felt that way going into this … so again, no real surprise. Nevertheless, today made it obvious that the so-called ‘liberal justices’ are going to vote to uphold the law and big federalist justices like Scalia and Thomas will overturn it as being too intrusive on State / Individual rights.
• And on the importance of Kennedy, I think the individual mandate will be found unconstitutional unless he can come up with a better limiting principle than SG Verrilli has proposed. The SG failed—at least for me—to explain why upholding the mandate wouldn’t set a precedent for letting Congress force individuals into the stream of commerce. The Commerce Clause jurisprudence has never gone that far and I don’t think Kennedy will stand for such a result. He might be able to come up with a legitimate principle that explains why Congress’ power isn’t so broad with a valid individual mandate, vote to uphold the mandate bringing the four liberal justices along, then assign himself the opinion OR he’ll fail, find the scope of Congress power under a valid ACA too broad, and vote to strike it down.
• I was a little surprised at how audibly (I say audibly since I have only heard the audio and did not watch the arguments in person) shaken SG Verrilli was at the beginning of arguments. You could hear his nervousness this morning. Of course, he warmed right up and quickly shook his nerves. Still, such nervousness says something about the epic importance of this case…when a man with as much experience arguing before the Court as Verrilli has gets noticeably shaken up.
• Both the SG and Paul Clement did really well. They hit all their marks. Paul Clement continues to amaze with his appellate advocacy skills. He probably rivals the skills that Chief Justice Roberts used to show when he was an SG arguing before the Court.
• I was actually a little surprised at the liberal justices’ questions. I think they generally could have made strong points for their position. After all, cases like Raich are really strongly in favor of the government here. I’ll note, however, that I do find this case to be distinguishable from pretty much every other commerce clause case we’ve seen so I don’t know that Raich makes this a closed issue or has a particularly strong ‘controlling’ effect on how this case should come out. But, long story short, I think the liberal justices could have more clearly illustrated how stacked the caselaw at least seems to be against the petitioners.
• I’m interested now to hear how the severability arguments tomorrow go. I’m pretty uninterested in the challenges to the Medicaid changes.
That’s what’s on my mind right now. More thoughts after tomorrow’s arguments are up. And of course, SCOTUSblog continues to have excellent coverage of these cases.