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