Yesterday, we suggested that U.S. Supreme Court Justice Anthony Kennedy, the man in the middle of the highest bench in the land, must feel like the guy burdened with deciding where a group of nine famously finicky eaters should go out to dinner. Just replace dinner with the most closely followed case in the Supreme Court’s current session.
But after the second day of arguments yesterday over the 2010 health care law, it was apparent that Kennedy had soured on the Patient Protection and Affordable Care Act’s central pillar—the mandate requiring individuals to carry health insurance policies.
On the third and final day of arguments over the law, the Supreme Court weighed whether the law might be able to survive at all if stripped of its biggest policy. But while the justices tried to contemplate a version of the Obama Administration’s landmark domestic achievement without its central pillar, court observers seem less optimistic than ever toward the law’s fate.
“My approach would be to say that if you take the heart out of this statute,” Justice Antonin Scalia said, “the statute’s gone.”
Paul Clement, a former solicitor general arguing against the health care law, told the justices that if they find the individual mandate unconstitutional, they should ditch the entire act, saying it would be a “hollowed-out shell.”
Justice Sonia Sotomayor, who was elevated to the court by President Obama in 2009, suggested that if the mandate or any other part of the law were “severed,” as legal terminology puts it, the better solution would be to let Congress re-approach the issue.
But many leading Supreme Court analysts seem to believe that the court is ready to throw out the individual mandate. CNN’s Jeffrey Toobin, said the mandate is “doomed” and that “this entire law is now in serious trouble.” Toobin said that Kennedy used many of his questions to weigh how the remainder of the law is approached if the mandate is struck down.
The government was represented today by Deputy Solicitor General Edwin S. Kneedler, who stepped up after his boss, Solicitor General Donald P. Verilli Jr., turned in a performance yesterday that even many of the White House’s ideological allies called a “spectacular flameout.” Mother Jones’ Adam Serwer said Verilli should be “grateful to the Supreme Court for refusing to allow cameras in the courtroom.”
Even if Kneedler’s presentation today was any more solid than Verilli’s arguments earlier this week, things still aren’t looking good for the law many call Obamacare. While the final leg of the case made by the 26 states suing to overturn the law—that the health care act’s massive expansion of Medicaid is “coercive”—seemed to many to be its weakest point, the justices still suggested they were more likely to dump the entire law rather than nitpick their way through 2,700 pages.
“This still looks like a train wreck for the Obama administration,” Toobin said. “It may also be a plane wreck.”
