Anthony Kennedy Will Determine the Fate of Obamacare at the Supreme Court


With the conclusion of three days of argument before the Supreme Court, the legal battle over health care reform has formally come to a close. In 48 hours, the justices will gather in their private conference room and decide the fate of the Affordable Care Act (ACA). Save for the justices and a few select clerks, nobody will know the outcome of the case until opinions are issued sometime during late summer (best guesses estimate around June 28).

The center-piece of the health care litigation was the individual mandate, a provision that required individuals to purchase health insurance or pay a fee.

The Justices came out swinging right out of the gate, hounding Solicitor General Don Verrilli, the Obama administration lawyer, with questions about the mandate’s constitutionality minutes into his argument.

“I understand that we must presume laws are constitutional,” said Justice Anthony Kennedy, whose swing-vote is expected to decide the outcome, “but even so, when you are changing the relation of the individual to the government … do you not have a heavy burden?”

Kennedy joined other conservative Justices, namely Justices Antonin Scalia and Samuel Alito in trying to find the outer limits of government power should the individual mandate be found constitutional. “Could you express your limiting principle as succinctly as you possibly can,” asked Justice Alito, “Congress can force people to purchase a product…if what?”

That question, and the government’s unconvincing answers, will likely haunt the Obama administration until an official decision is issued. SCOTUSBlog’s Lyle Denniston made clear that this question of limiting principles is where the decision on Obamacare will hinge. “If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate,” writes Denniston, “the mandate may well survive.”

 But what if he can’t? What will happen to the ACA should the court find the individual mandate unconstitutional?

The Court seemed equally split along familiar lines on the issue of whether lack of a severability clause would condemn the entire ACA to the waste bin of history or whether the mandate could be tossed and the rest of health care reform left intact.

For their part, the liberal wing of the Court fought adamantly to argue that choosing which sections of the law must be eliminated should the mandate fall is a question best left to Congress. “There are so many things in this Act that are unquestionably okay,” said Justice Ruth Bader Ginsburg, “so why should we say it’s a choice between a wrecking operation…or a salvage job, a more conservative approach would be a salvage job.”

 “I would say stay out of politics,” said Justice Stephen Breyer, “that’s for Congress; not us.”

More conservative justices — seemingly led by Justice Scalia — weren’t buying it. “My approach would be to say that if you take the heart out of this statute, the statute’s gone,” said Scalia, referencing the individual mandate in arguing for full elimination of the ACA.” Scalia suggested that it would be better to invalidate the entirety of the law and let Congress start over with a blank slate.

In review, many pundits called the government’s showing poor, at best. CNN’s Jeffrey Toobin now famously called the argument a “train wreck.” Toobin’s concerns were echoed throughout the legal blogosphere as many felt that Verrilli’s arguments were not as strong as they could have been, to the dismay of ACA supporters and the cheers of challengers.

With all of that said, it is important to remember that oral arguments are more show than substance. Most Justices come in to oral arguments with their mind made up, using arguments to lobby fellow justices to join their cause. Reading too much into any particular line of questioning is usually a practice in speculation and little else.

After Friday’s conference, the justices’ votes will be noted and the opinion writing process will begin. Most legal analysts (myself included) expect a 5-4 decision on the individual mandate so the drafting of opinions may yet change the outcome behind the scenes. Justice Kennedy famously changed his vote after conference in the 1992 case of Planned Parenthood v. Casey, which turned a 5-4 opinion overturning Roe v. Wade into a 5-4 opinion upholding it.

With Kennedy expected to cast the deciding vote again, the Court’s Obamacare decisions can go either way. Come late June the country will learn the fate of health care reform. One thing is for sure, whichever way the Court comes out, the ripple effect on the political, legal, and societal arenas will be massive, particularly with an election looming in the fall. This week, Americans have had the opportunity to watch legal history be made. Now, we must all patiently wait as that history is written.

Check out PolicyMic’s Three-Day Blow-by-Blow Account of Supreme Court arguments.

Also be sure to read PolicyMic debates on Obamacare’s constitutionality and the future of the individual mandate.