I’ve now made it through the full transcript of this morning’s argument. Here are four thoughts:
1) This was a huge day for the challengers to the mandate. The challengers have an uphill battle because they need to sweep all four of the Republican nominees who are potentially in play — Roberts, Alito, Scalia, and Kennedy. Based on today’s argument, it looks like all four of those Justices accepted the basic framing of the case offered by the challengers to the mandate. In particular, they all seem to accept that a legal requirement of action is quite different from a legal requirement regulating action, and that therefore the expansive Commerce Clause precedents like Raich did not apply to this case. That was the key move Randy Barnett introduced, and the four key Justices the challengers needed seemed to accept it. Just as a matter of precedent, that doesn’t seem to me consistent with Wickard v. Filburn, which stated that “[t]he stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” But putting aside precedent, the four key Justices all appeared to accept Randy’s basic framing. That was an enormous accomplishment for the challengers.
2) Based on today’s argument, I think it’s a toss-up as to which side will win. My sense is that Scalia is very clearly against the mandate, and Alito seemed to lean that way. Roberts also seemed more on the anti-mandate side than the pro-mandate side. It’s a cliche, but the key vote seems to be Justice Kennedy. As my friend and fellow former Kennedy clerk Steve Engel told the Wall Street Journal today, “It’s entirely possible he doesn’t know yet which way he’s going to go.” And yet assuming the Justices feel bound to the usual practice of finishing up the Term’s opinions by late June, there isn’t much time. These opinions are hugely important and yet will have to be written very quickly, which doesn’t bode well for their likely quality.
3) If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President’s strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush. The President’s opponents heralded the Court’s new decisions as the restoration of the rule of law and the application of profound constitutional principle. Meanwhile, the President’s allies condemned the decisions as the products of unbridled judicial activism from a political court. If the mandate gets struck down, we’ll get a replay with the politics reversed. Just substitute Obama for Bush, health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard for Eisentrager.
4) Purely from the perspective of a legal nerd, what fun to live in such interesting times. Those of us who follow the Supreme Court and teach or write in areas of public law are always dependent on what the Court does. If the Court does boring and expected things, then following the Court can be a bit routine. But this Term the Court has been pretty darn exciting to watch. Whatever you think of the umpire, the game sure is entertaining.