Oral argument at the Supreme Court has almost wrapped up on the crucial question whether the individual mandate is constitutional. And, based on early reports, it’s quite possible that the answer to that question is “no.” Tom Goldstein, who writes for SCOTUSblog, writes as follows based on the questions posed to Don Verrilli (the Solicitor General) and Paul Clement (the attorney for the states challenging the mandate):
Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble. It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli. On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions. Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden. At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality.
I’ve thought all along that this was never going to be an easy case, and that those who blithely predicted an 8-1 decision in favor of the mandate’s constitutionality (pretty much everyone has always assumed that Thomas would vote against it) were going to be unpleasantly surprised. It’s easy to overread oral arguments, so a lot of caution is necessary at this early stage. Nonetheless, it does seem to me that, in recent years, Justices have become less reticent about “tipping their hands” at oral argument, so one has to take quite seriously the view of a seasoned observer like Goldstein that, although there are clearly four votes in favor of the mandate’s constitutionality, the fifth may prove elusive.