The only important caveat to assigning predictive value to the Justices' questions at oral argument is that you do so at your own peril. Particularly on fun and important novel questions of law, appellate justices often give all counsel, including those they agree with, a rigorous and sometimes brutal working over. It is the law school professor in them. They like to ask impossible to answer questions to see what kind of intellectual spark they light when the poor attorney tries to be responsive. However, it is more common than not that one can catch the flavor, if not the conclusions, of individual justices' thinking. If so, then the first arguments today in front of the Supreme Court is a foreboding sign for Obamacare's individual mandate. The individual mandate would purport to require each of us to either buy insurance or pay the government so they can insure us. In essence, the Democrats justified the law under Congresses power to regulate interstate commerce, but there is no real precedent for a law the requires citizens to engage in commerce as opposed to regulating that commerce once we have become so engaged. The Solicitor General, who serves as the administration's top lawyer, did not get three minutes into his defense of the law when he started to get ripped. As importantly as the fact that certain justices were leveling broadsides at him, is who they are. Alito and Thomas are certain votes to throw at least the mandate, if not the whole law, out. That means that three other justices are needed to get a majority. There has been some discussion that Scalia could be turned because of a couple of cases that he had joined in which he recognized an expanded congressional commerce clause power. Others postulated that Chief Justice Roberts would be leery of tarnishing his legacy by giving the appearance of partisanship by trashing Obama and Pelosi's signature policy legislation. Most SCOTUS observers, however, placed the highest likelihood of the law being upheld with Justice Kennedy, the most common swing vote, siding with the four liberal judges as he has many times in the past. Well, guess who started the argument by flattening the Solicitor General? That's right, Scalia, Roberts and maybe harshest of all, Kennedy. This post from the LA Times has a good summary:
It that the sound of liberal wailing and gnashing of teeth I hear in the distance? Growing louder?Even before the administration's top lawyer could get three minutes into his defense of the mandate, some justices accused the government of pushing for excessive authority to require Americans to buy anything."Are there any limits," asked Justice Anthony Kennedy, one of three conservative justices whose votes are seen as crucial to the fate of the unprecedented insurance mandate.Chief Justice John G. Roberts Jr. suggested that the government might require Americans to buy cellphones to be ready for emergencies. And Justice Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles."If the government can do this, what else can it ... do?” Scalia asked.
[Update: The Washington Post reads the tea leaves the same way the LA Times did]
The Washington Post is a fairly liberal Newspaper that often carries the Obama administration's water. Which means this article must be causing more that a little discomfort in the White House:
The Supreme Court’s conservative justices appeared deeply skeptical that the Constitution gives Congress the power to compel Americans to either purchase health insurance or pay a penalty, as the court completed two hours of debate Tuesday on the key component of the nation’s health-care overhaul law.Justice Anthony M. Kennedy, traditionally the justice most likely to side with the court’s liberals, suggested that the 2010 Patient Protection and Affordable Care Act invoked a power “beyond what our cases allow” the Congress to wield in regulating interstate commerce.
“Can you create commerce in order to regulate it?” he asked.
[Further Update: As did the Clinton News Network]
CNN, another liberal bastion of the MSM had a similar read:
Jeffrey Toobin, CNN's senior legal analyst, said questions asked at oral arguments often show how justices are thinking, and based on what he heard Tuesday, the health care reform law could be in "grave danger."