Tom Goldstein, a veteran litigator before the U.S. Supreme Court and publisher of ScotusBlog, listened to the morning’s argument over the ObamaCare mandate and posted the following assessment:
“Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.”
I know firsthand that trying to discern a judge’s mindset based on the questions that he or she asks is tricky business at best. The judge may be asking tough questions of one side merely to hone his or her own later arguments in support of that side.
For example, consider the divergence between two witnesses to the discussion, first from Lyle Denniston, also of ScotusBlog:
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.
Meanwhile, Jeffrey Toobin of CNN concludes from the questioning that Kennedy is “a lost cause” for the Obama administration:
“This was a train wreck for the Obama administration. This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong… if I had to bet today I would bet that this court is going to strike down the individual mandate.”
– Jay Bookman