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The Supreme Court on health reform: day two

Today saw 120 minutes of argument on the constitutionality of the individual mandate part of the Act. I should note that I have taken a public position on this issue and in favor of the individual mandate - I am a signer of the "Brief of 104 Health Law Professors as Amici Curiae in Support of Petitioners (Minimum Coverage Provisions)." That may color my view of today's argument - or, perhaps more likely, as correlation does not imply causation, some underlying frame of my mind may color both my joining that brief and my view of today's argument.

Before I talk about that argument, I need to point out the limits of argument. I had the pleasure and privilege of serving as a clerk to Justice Potter Stewart nearly 35 years ago (lower Pleistocene). I strongly suspect that what I observed then is still true today: oral argument is just one step, and not a very important one, in how cases are decided. That process starts with the papers seeking to convince the Court to hear, or not to hear, the case and is followed, more importantly, by the parties' briefs (joined, in this case, by scores of amicus briefs). In my year at the Court, I would guess that the oral argument changed the result in only one case all term.

The oral argument is a window into a small part of the process, a window that is obscured by silence, by genuine uncertainty, by devil's advocacy, and, mostly, by the fact that for many justices in many cases, the results are still uncertain.

Later in the week of the argument the Justices hold a conference on the cases they have heard and cast preliminary votes - and then, at least in close cases, the real persuasive work begins. Justices talk to each other, their clerks talk to other clerks, and, most importantly, draft opinions begin to circulate. Some arguments sound good but just don't write up well. In others, new holes, and new possibilities, show up on paper. Justices bargain for changes in language in return for their concurrence in an opinion. Sometimes, they change sides. It is not unknown for the result to shift in the last couple of days before an opinion is issued and the majority opinion in a five to four case becomes, much to its author's dismay, a four justice dissent. The oral argument is a window into a small part of the process, a window that is obscured by silence, by genuine uncertainty, by devil's advocacy, and, mostly, by the fact that for many justices in many cases, the results are still uncertain.

I was asked to blog about the argument and so I have. Oral argument is a very uncertain clue to a case's outcome, but is the only new clue we get between the briefing and the announcement. I suspect what follows is guilty of putting too much weight on what was said today. Don't pay (too much) attention to me.

And now, the argument. I wasn't in the building and didn't even listen to the audio; I've just read the transcript. Based on that, and my previous expectations about the Justices' positions, I'd say this had to be a disappointing day for the Administration (and other supports of the health reform bill), but not a terribly disappointing one. I came into this week thinking that the Court would probably vote to uphold the individual mandate by a vote of either five to four or seven to two, with a possible loss by a vote of four to five. After today, I have narrowed my expectations down a bit. I think the likeliest results are that the Court will uphold the individual mandate by a vote of six to three, followed by a vote of five to four, followed by a four to five loss.

The day did not start well for the Administration or for Solicitor General Verrilli. Again, it is hard to tell with only a naked transcript (kind of like picturing a living patient from an X-ray), but he seemed to get off to a slow and somewhat stumbling start, aided and abetted by Justices Scalia, Kennedy, and Alito. The more liberal justices - Ginsburg, Breyer, Sotomayor, and Kagan - eventually provided some easier questions (though not all of their questions were easy), but his first ten minutes was rocky. The Court seemed interested in the action/inaction distinction (can Congress's power over interstate commerce extend to people who are not yet participating in that commerce) and, maybe most deeply, into the possibility of finding a principled line. It was the broccoli question, asked in ten different ways - "if we say Congress can force people to buy health insurance, what couldn't Congress force people to buy, or to do?" I think there are some plausible answers to that question, but General Verrilli didn't get them out very cleanly or crisply.

The Court paid little attention to the other two grounds for upholding the mandate - the necessary and proper clause and the taxing power. Justice Scalia did point out that, for the first argument, the actions had to be both necessary, which he was willing to think this could, maybe, perhaps, be, and proper, which it seemed to him it wasn't. And there wasn't much argument (a little from Paul Clement, representing the states) that this couldn't fall within the taxing power - if it were a tax. But the idea that was a tax - or, at least, a tax for purposes of the taxing power - didn't seem to generate much enthusiasm.

Counting heads, I, along with most observers, went into this thinking that the four more liberal justices would vote for the mandate's constitutionality, that Justices Scalia and Thomas would vote against, and that Chief Justice Roberts and Justices Kennedy and Alito might go either way. Justice Thomas preserved his record of six-plus years of unbroken silence from the bench, a modern record he extends with every argument (though I suspect that no one, not even the Elias Sports Bureau, has real historical stats on streaks of justicial silence). Justice Scalia quickly confirmed his place in the line-up, as did, a touch more slowly, Justices Ginsburg, Breyer, Sotomayor, and Kagan. The one surprise to me was how clearly, and firmly, Justice Alioto seemed to line up against the mandate. That's why I no longer see seven to two as a possibility.

That leaves Justice Kennedy and Chief Justice Roberts. Justice Kennedy asked hard questions of both sides. What stood out for me, though, were some comments he made near the end, in questioning Michael Carvin, the lawyer for the National Federal of Independent Business and the third of the three lawyers to speak.

Carvin argued that the real problem in health care was people defaulting on their debts to health care providers, not people failing to buy health insurance, but, he complained, Congress had not chosen to regulate that real problem. Justice Kennedy agreed with him, but then said:

And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets - stipulate two markets - the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.

That's my concern in the case.

Carvin gave a rambling response that basically said, "Congress should only have forced healthy 30 year olds to buy catastrophic health insurance." But I don't think that responded to Justice Kennedy's musings about how health insurance might really be special. And those musings should give the Administration some comfort.

There is another sign of hope for the Administration. Everyone seemed to agree (a little too easily, I thought) that Congress could require anyone buying health care services to do it through buying insurance. There was some fighting over how feasible that would be. If Congress could do that, or Congress could (equally broadly conceded) do a single payer system along the lines of the Social Security Act, then why should the Court throw out a less extreme response with some plausible convenience (read "necessary and proper") to it.

The Chief Justice asked hard questions to all sides. In my mind's ear, his questions to the opponents of the Act felt a little lacking in conviction, all part of his role as the neutral umpire he thinks the public wants to see in a Chief Justice. My guess is that, left to himself, he would be very tempted to hold the mandate unconstitutional but that, if the mandate has five votes anyway, he may vote to uphold, which would allow him to decide who writes the majority opinion (including himself). This would do two things for him: in the majority (and especially if writing the opinion), he could work to make the holding quite narrow and, by being in a 6 to 3 majority, he could undercut some impressions about the degree of partisanship of the Court.

On the other hand, if he really is convinced by his fellow conservative justices, he can make it five to four. And if Justice Kennedy becomes unhappy with the distinctiveness of the health insurance market, Justice Roberts could end up assigning a five to four opinion striking down the mandate.

Back for a moment to a critical review of the lawyers. It is hard to know much from reading a bare transcript, but I'm guessing Paul Clement, a former Solicitor General now arguing against the government, is feeling very pleased with himself. Win or lose, he seems to have done a great job. One of the great shocks of my life came the first time I read a court reporter's transcription of something I had said. Before then, I was under the impression I spoke English, with sentences and everything; after that, mumbling garbled pidgin gibberish seemed about as good as I could honestly be judged. Not a problem for Clement - he spoke in perfect paragraphs and never seeming at a loss for an answer. Carvin had a harder time, though he did a nice job of making Clement look reasonable by comparison.

For those of you who can't enough of this analysis, I recommend the blog for Health Affairs, the country's preeminent health policy journal. As of this morning, they have inside baseball analyses from not one, but four law professors: Bill Sage, Wendy Mariner, Tim Jost, and Sara Rosenbaum. (I recommend starting with Jost - and I'd note that all four signed one or more amicus briefs supporting the Act. Rosenbaum joined two and co-wrote a third.) For a little broader perspective on these arguments, and the Court's actions in general (as well as, often, a more humorous one), I enjoy Dahlia Lithwick's coverage in Slate.

Tomorrow, we get two issues for the price of one: severability and Medicaid expansion. Join me then.

Hank Greely, JD, is a Stanford law professor and an expert on the legal, ethical, and social issues surrounding health law and the biosciences. He is director of the Center for Law and the Biosciences, and he chairs the steering committee of the Stanford Center for Biomedical Ethics.

Previously: The Supreme Court on health reform: day one

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