SCOTUS Blog blogger Tom Goldstein’s updates from the Supreme Court where oral arguments on the constitutionality of the 2010 health care reform law’s individual mandate are ongoing has some bad news for supporters; in his view, the justices are siding against the individual 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,” Goldstein writes. “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.”
Justice Clarence Thomas who tends to remain quite followed form today – this gives supporters of the government position pause. Evidently, Justice Anthony Kennedy, the court’s most mercurial swing vote, aggressively questioned Solicitor General Donald Verrilli and appeared keen to the arguments made by attorney for the opposition Paul Clement. Supporters of the individual mandate are sweating this morning.
Goldstein writes that Justice Samuel Alito, a conservative justice appointed by President Bush, was skeptical of the opposition’s argument and was not “dismissive of the statue’s constitutionality.” Combined with yesterday’s widely publicized skepticism voiced by Chief Justice John Roberts, supporters of the constitutionality of the individual mandate still have hope.
However, today’s oral arguments suggest that a 5-4 ruling that would rule the individual mandate unconstitutional is forthcoming.
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Follow Noah Rothman @Noah_C_Rothman
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