Remember yesterday, when pretty much every legal expert agreed the Supreme Court wouldn’t strike down the Affordable Care Act? When those who watch the high court closely explained it would take a radical departure from a century’s worth of precedent for the Obama administration to lose this case?
As of this afternoon, no one’s saying that anymore.
Here’s NBC’s Pete Williams reporting from the Supreme Court, arguing that it’s “very doubtful” a majority of the justices will uphold the law.
To be sure, I wasn’t in the room, so I can’t speak to this morning’s arguments in any real detail. What’s more, it’s always worth remembering that court watchers look to these arguments for hints, but there are no guarantees that justices who appeared to be leaning in one direction or another will necessarily rule that way.
Those caveats notwithstanding, I had conversations this afternoon with a few reporters who were in the Supreme Court for the arguments, and they agreed on several key points:
* The mandate has at least four votes (Ginsburg, Breyer*, Sotomayor, and Kagan).
* Solicitor General Don Verrilli, who argued the case for the government, was not at the top of his game today, and the word “choke” is being bandied about quite a bit.
* Paul Clement, the former Solicitor General who argued against the health care, was excellent.
* The two votes to watch are Roberts and Kennedy. Scalia, Thomas, and Alito do not appear to be in play, despite all of Scalia’s previous opinions on Commerce Clause jurisprudence. * The liberal justices were far more effective than Verrilli in making compelling arguments in defense of the law. Lyle Denniston, whose work covering the Supreme Court is second to none, had a worthwhile item, noting, “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., 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.” For those brave souls who want to listen to all of this morning’s proceedings, the Supreme Court has posted the audio clips online. *fixed
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