John Roberts, Anthony Kennedy May Be Key Supreme Court Justices In Health Care Law Case

WASHINGTON — The fate of President Barack Obama's health care law appears to rest precariously in the hands of two justices.

After three days of Supreme Court arguments, the questions justices asked the lawyers are the only tea leaves to read, however unreliable. Justice Anthony Kennedy's mixed queries left the most room for him to be seen as a possible swing vote to decide the issue. Chief Justice John Roberts also spoke up for both sides of the issue at times.

The four Democratic-appointed justices seemed to champion the law. If they all support it, at least one of the court's five Republican appointees would still be needed to uphold the law.

Two of them, Justices Antonin Scalia and Samuel Alito, sounded hostile, while a third, Justice Clarence Thomas, remained silent but is presumed likely to find it unconstitutional based on past opinions.

The two other Republican appointees may be the key. Roberts expressed skepticism that Congress has the power to require Americans to carry health insurance or pay a fine. But he also sometimes reiterated Obama administration arguments, leaving a murkier impression overall than the other conservatives.

Kennedy was hardest to read. He said the insurance mandate was "changing the relation of the individual to the government." Justifying that is a "heavy burden," he warned.

But Kennedy also indicated openness to the argument that the health insurance market is unique, so telling Americans they have to carry insurance isn't like forcing them to buy other products. Young people who forgo insurance – "that person who is sitting at home in his or her living room doing nothing" – are contributing to the price of others' coverage because they might require treatment and if they aren't insured, the costs of that treatment get passed on to other Americans in taxes and higher insurance premiums.

The court's liberals – Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor – said little to shake expectations.

Of course, the questions might not mirror the justices' thinking, and their views could shift during the court's internal debates.

"It's foolhardy to try to predict the outcome of this decision based solely on the questions," said White House spokesman Josh Earnest.

Comments

[gfulmore]

09:54 PM on 03/29/2012

Dear Justice Kennedy:
During the recent oral arguments before the Court, you talked about the financial “risks” that insurance companies might be faced with if the individual mandate were stripped from the health care law. This thinking is in line, of course, with the abilities of insurance companies to control THEIR risks. You must know that they are very good at this.
For decades, health-care insurance companies have been controlling their risks by denying applications from individual applicants with “pre-conditions,” such as asthma, high-blood pressure, diabetes and even pregnancy. Why would insurance companies want these kinds of people if they did not have to insure them? Sure, these same people can get insurance coverage under a group plan through their employers. But if these same folks are self-insured, between jobs or out of work, or work for an employer who does not provide insurance, they must apply for individual coverage. There, THEY are the ones “at risk,” NOT the insurance companies. You see, they have very little leverage or support in this effort. If they admit a pre-condition, they probably will be denied coverage.
The Affordable Care Act (ACA) has been designed for these people, the ones who would seem to face most of the “risks” under current conditions. For many, their greatest risk is to lose all their assets because of a SINGLE medical emergency or hospital stay. Bang! One incident, and these folks – those without health-care insurance -- are in bankruptcy.

[BlueBelly]

09:11 PM on 03/29/2012

As it turns out it didn't matter if it's called a mandate or a tax. The Republicans just didn't want people to be "require" to buy health care insurance. The Supreme Court knows that ACA is constitutional just look at Massachusetts and it works. But, when you go on junkets with Koch Bros and your wife(Justice C. Thomas) is lobbyist for the Heritage Foundation/ Tea Party it 's will make it impossible to go back to the well for money and favors. This country is screwed.

[Joe Buffington]

04:10 PM on 03/29/2012

For political reasons if not simply impatience, everyone wanted the Court to render an issue on the constitutionality of (the individual "mandate" within) the ACA, so everyone, even the Obama administration, abandoned the argument that the tax penalty (the only teeth to the "mandate") is a "tax." Viewed as a "tax," the "mandate" is surely constitutional: there are tax consequences to virtually every choice we make - the choice not to self-insure under the ACA would just be one more of them, limits under the commerce clause notwithstanding. Viewed as a "penalty," the mandate opens to the "parade of horribles," which is exactly what the tea partiers were praying for. Under the takings clause / the power of eminent domain, the federal government can "mandate" that an individual sell his or her property to the government - that's creating commerce. Moreover, the federal government can "mandate" that young adult males register for selective service. The idea that the federal government can only tell individuals what NOT to do is absurd. But grown men are afraid the federal government will mandate that they buy (but not eat) broccoli. How absurd.

[highflag]

01:29 PM on 03/29/2012

I sincerely hope that I'm mistaken, but I fully expect that come June we will be treated to another historic 5-4 decision which will strike down the individual mandate, thus gutting the heart of healthcare.

The Supreme Court over the past dozen years, has become an entirely political entity. Bush v Gore, Citizens United and this. Three landmark decisions that will brand this court as the most damaging in it's history.

Those who are wearing the august robes should be ashamed. They are handed an appointment of incredible enormity, and they are proving themselves to be totally unworthy of the public's trust.

[Silask]

11:26 AM on 03/29/2012

As a student of History and Government, I was not impressed with the questions asked nor was I impressed by the presentation by either side of the issue. We have too many academics in the court.

I would like to see the country divided into 9 districts. Each district would have one seat on the Supreme Court. Many of the cases that come to the Supreme Court have specific geographical concerns that need to be brought to the table.

Basically what we now have is a "Harvard Court".

[calypso54]

08:09 AM on 03/29/2012

Why does Justice Thomas never speak on any issue? Shouldn't he be asking questions too?

[GrimReverb]

05:19 AM on 03/29/2012

I'm still confident that there will be a 5-4 or even 6-3 majority upholding the ACA. Critical questions were expected, and should have been asked. It's not a black and white issue. It just seems highly unlikely that the SCOTUS will throw out such a high profile, signature piece of legislation, especially so soon after Citizens United.

[Spokey]

12:38 PM on 03/29/2012

You are naive. This court overid states rights issue to intervene in deciding who the President of the US would be in 2000. Granted Alito and Roberts were not on the court but we KNOW how they would have voted. This court is filled with political hacks who are not objective and would love nothing more than to upend a signature piece of accomplishment by a democratic president right before an election. The conservatives with Scalia being the most partisan have denigrated the Supreme Court and made it into a political institution.

[JadedLady2]

04:58 AM on 03/29/2012

After the Supreme Court's Bush vs Gore debacle, one has to question why they will get into another presidential election situation.

[DKCOON]

08:44 PM on 03/28/2012

It will all come down to perceptions. Chief Justice Roberts and Justice Kennedy are afraid that the Supreme Court is looking too much like a no judicial entity. All these 5-4 votes down party lines are very much damaging the Courts reputation. Just maybe these two will bend over backwards here to fix some of that damage.............

[susanbsbi]

07:28 PM on 03/28/2012

People don't realize something that once you get a preexisting condition, it is hard to get coverage. Some of those conditions are: Asthma, Allergies, Diabetes, Gerd [ heart burn once you get a script for meds] Breathing problems, acme and etc.

The insurance companies can charge you double the amount, high deductible, and not cover your preexisting condition for 2 to 5 years

[10181854]

07:21 PM on 03/28/2012

working in healthcare for over thirty years, yes we need to reform healthcare or close the borders
so that we do not have to treat everyone form all over eighty percent of Mexicans have a medicaid card and lives in Mexico. Look at all the fraud whoa somebody is getting paid.
I do not care either way it just proves that the fraud is OK .

[WELLS35]

12:12 PM on 04/03/2012

Give some proof of your statements rather than just make a blanket statement.

[10181854]

06:10 PM on 04/03/2012

I go stand in any free clinic I worked them and we were told what to do!!!