One thing was clear after the two hour session at the Supreme Court
on the constitutionality of the Affordable Care Act: The outcome of
President Obama’s signature legislative achievement probably rests on
the shoulders of two men—Chief Justice John Roberts and Justice Anthony
Kennedy. Or, to put it differently, everyone else seems to have staked a
clear position. The court’s four liberals appear poised to uphold the
law. Justices Samuel Alito and Antonin Scalia appear ready to strike it
down. Justice Clarence Thomas was always assumed to be a vote against
the Affordable Care Act and didn’t speak today. So, we are left to guess
about Chief Justice Roberts and Justice Kennedy, who based on their
questions appear to be someplace in the middle. The betting on the steps
of the court afterward split among those who suspected the final vote
will be 5-4 to strike it down, or 6-3 to uphold it. I didn’t hear anyone
taking bets on anything in between.
In the beginning, all eyes were on Kennedy who opened his questioning
by asking Solicitor General Donald Verrilli to “assume this law is
unprecedented.” (Gulp. That isn’t the way Verrilli wanted this to
begin.) Both Kennedy and Roberts pressed Verrilli to enunciate a
limiting principle on the congressional power asserted here. Or as
Kennedy put it, early in the argument: “Can you identify any limits on
the commerce clause?” And Roberts was also bothered by the degree to
which invoking the commerce clause to regulate the insurance market
would mean that “all bets are off” (he said that phrase twice) and
anything could be subject to regulation. When Kennedy said that “the
reason this is concerning, is because it requires the individual to do
an affirmative act,” it appeared that he was willing to accept the
argument presented by the Obama administration’s opponents that the
critical distinction in the case is between regulating activity and
regulating “inactivity.”
