U.S. Supreme Court

Will Administration Get Fifth Vote to Uphold Health Care Law? Maybe Not, Arguments Suggest


Oral arguments on the Obama administration’s health care law did not start out well today for Solicitor General Donald Verrilli Jr.

He faced tough questioning as justices suggested that upholding the law’s health insurance mandate could lead to a slippery slope, according to the Los Angeles Times, the New York Times and the Washington Post. Chief Justice John G. Roberts Jr. asked if the government could require consumers to buy cell phones for emergencies. Justice Antonin Scalia asked about laws requiring Americans to buy broccoli or cars. Justice Samuel A. Alito Jr. asked about forcing people to buy burial insurance.

The questioning “may signal trouble” for the law’s requirement for consumers to buy health insurance or pay a penalty, the Los Angeles Times says.

The court’s four liberal members are expected to vote to uphold the law, while Justice Clarence Thomas is expected to vote to strike it down. That leaves four justices in play: Roberts, Scalia, Alito and Anthony M. Kennedy. “The conventional view is that the administration will need one of those four votes to win,” the New York Times says, “and it was not clear that it had captured one.”

All eyes will be on Kennedy, according to SCOTUSblog. Early in the arguments, he displayed “a very deep skepticism,” but later he left the impression that “he might yet be the mandate’s savior.”

According to SCOTUSblog, “The argument on Tuesday pointed the justices in opposite directions—the first hour against the mandate, the second hour cautiously in its favor.”

“If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive,” SCOTUSblog says. “If he does, he may take Chief Justice John G. Roberts Jr. and a majority along with him. But if he does not, the mandate is gone.”

Updated at 2:10 p.m. to correct a reference to Justice Clarence Thomas.

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