Tornado Alley (PROG)

[StephanieVanbryce]

Argument recap: It is Kennedy’s call

Lyle Denniston Reporter
Posted Tue, March 27th, 2012 12:20 pm

Analysis

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government. But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature.

The Justices will cast their first votes on the mandate’s constitutionality later this week, and there are perhaps three months of deliberations that would then follow. Much will be said and written within the Court in private during that time, and that obviously could affect the ultimate outcome. The argument on Tuesday pointed the Justices in opposite directions – the first hour against the mandate, the second hour cautiously in its favor.

Justice Antonin Scalia led the charge against the mandate in the first part, but remained largely silent in the second. When he was on the offensive, he seemed to have the Chief Justice and Justice Samuel A. Alito, Jr., clearly with him, and there were repeated signs that Kennedy, too, was against it.

Since Justice Clarence Thomas is known to be a determined foe of broad power in Congress to regulate economic matters, he very likely would join those four if they were to coalesce around a decision to nullify the requirement that virtually all Americans must obtain health insurance by the year 2014 or pay a financial penalty. The argument that such a decision would seem likely to employ, were it to come, would be that Congress took a totally unprecedented step in ordering health Americans to go out in the marketplace to buy an insurance policy they did not want, do not now need, and may never use, and this step was but the first step in massive over-regulation of private choice.

That argument, indeed, was the one that the conservative members of the Court repeatedly pressed while the Solicitor General was offering his defense. The fear of this Orwellian prospect led Justice after Justice to ask for some constitutional principle that would limit the expected damage to the Republic. Verrilli’s main response was the uniqueness of the health insurance industry, but that did not deter the continued complaint from the bench that Congress would not stop there if it had the endorsement for this initial foray into Super Government.

Justice Stephen G. Breyer was the most vigorous defender of Congress’s power to select the mandate as the key piece in the new health care law’s regulation of the insurance industry, but almost equally speaking up for it were Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. But those four, of course, cannot control the outcome on their own. But, in the end, if Kennedy were to wind up accepting the mandate’s validity — however reluctantly — those four could then be in the majority. Such a majority, it appeared, would probably form only behind the theory that the mandate was within Congress’s power under the Commerce Clause, not under its taxing authority in the General Welfare Clause. The tax argument seemed to lack force, and Verrilli used it primarily as just a backup.

If that coalition were to form, it would be likely that Justice Kennedy, the senior among those five, almost certainly would assign the opinion to himself — unless, of course, the Chief Justice ultimately were persuaded to go along so that this historic case did not turn out to be decided 5-4. Roberts was among the more combative adversaries of the mandate, during Verrilli’s argument, but he made considerable efforts to remind the challengers’ lawyers of the government’s key points, perhaps to test how solid their answers to those points would be.

http://www.scotusblog.com/2012/03/argument-recap-it-is-kennedys-call/

.........How could I feel so negative now? .. ;) oh ..Scalia, Thomas and who else .. close friends with the KOCH bros ... . ;(

And, Donald B. Verrilli, Jr., makes it sound as IF he doesn't have good legal standing ... ;(