The linchpin of President Obama's health care law, the individual mandate, is in trouble, according to some observers of today's Supreme Court hearing. It's not a scientific assessment but it's based on the microscopically-scrutinized utterances of the nine justices who reviewed the law during this morning's two-hour session of oral arguments.
From the outset, everyone knew the disposition of Justice Anthony Kennedy would be crucial given his reputation as the unpredictable swing-vote. Kennedy appeared more skeptical of the mandate than some predicted, saying the Obama administration has a "very heavy burden of justification" to demonstrate the mandate's constitutionality. The Wall Street Journal reported that Kennedy said "the insurance mandate changes the relationship between the federal government and individual citizens 'in a fundamental way.'"
As for Chief Justice John G. Roberts, The Washington Post reports that he "wondered if the government could require everyone to buy cellphones, since that would facilitate the government’s system for providing fire and ambulance services in emergencies." Verrilli countered saying health care is unique because individual's can't foreshadow what ailments will befall them or what services they'll need. Justice Samuel Alito raised the issue of burial services. "Aren’t people who don’t have burial insurance making a decision about how they are going to pay for their inevitable funeral?" he questioned, saying the the government's underlying logic is "artificial." That prompted Breyer to step in, saying "If the United States had a burial insurance market equivalent to the extensive system of private and public insurance that it has for health care, perhaps it would not be inappropriate to require people to obtain burial plans." Clarence Thomas, meanwhile, asked no questions (he's typically the silent type).
Pretty much everyone agrees that it will all come down to Kennedy at this point. Giving his final assessment of the day's arguments, Goldstein notes that Kennedy's remarks still left open some wiggle room. "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" he wrote. "It will be close. Very close."
Update: The audio and transcript from today's oral arguments are now available here.