KHN contributor Stuart Taylor, Jr., tells Jackie Judd the conservative justices were especially skeptical today, asking sometimes-hostile questions of Solicitor General Donald Verrilli.
JACKIE JUDD: Good day and welcome to “Health Reform and the Court.” I’m Jackie Judd. The second day of the historic Supreme Court hearings on the health reform law focused on this central question: Does Congress have the power to require Americans to purchase health insurance? Is the individual mandate constitutional? Our man at the court, Stuart Taylor – who is a legal contributor to many publications, including the National Journal – once again joins us. Welcome, Stuart.
STUART TAYLOR: Nice to be here, Jackie.
JACKIE JUDD: A livelier argument today than yesterday.
START TAYLOR: Much livelier. It was easier to follow, too. Yesterday was actually pretty lively, but lively about intricacies of the tax code.
JACKIE JUDD: Today, what were the overarching arguments that both the states made and the federal government?
STUART TAYLOR: And the justices pitching in on both sides.
JACKIE JUDD: Absolutely.
STUART TAYLOR: Donald Verrilli, the solicitor general arguing for the government, the Obama administration, started off. And his lead points were: Congress was confronted with a terrible problem – 40 million people without health insurance – and also a lot of cost-shifting, where when these people need emergency care, have terrible accidents, things like that, they can’t pay for their care, they’re not insured, and therefore the costs get shifted to everyone else.
He said the average health insurance policy of those of us who are insured is raised $1,000 by the need to subsidize all of these other costs. The other side disputes the numbers, but clearly it’s a big number. Those were his main themes. And also that health care is clearly a commercial service and everybody needs health care sooner or later – it’s just a matter of the timing. So all we’re doing is regulating the timing of how people finance their own health care.
JACKIE JUDD: And Paul Clement, who argued for the states?
STUART TAYLOR: His main themes were: This requires people to buy a commercial product they don’t want. It requires people to enter commerce – people who don’t want to be engaged in commerce – and that’s unprecedented and unbounded. His point was: Once Congress can do that, if you let Congress do that, there’s nothing Congress can’t do. They could make us buy cars, buy broccoli, etc.
JACKIE JUDD: So the “essential relationship between the federal government and the individual shifts” was his argument?
STUART TAYLOR: It certainly was. And some of the justices picked up with the same theme.
JACKIE JUDD: One report out of the court said that Verrilli got only 3 minutes into his prepared remarks before the justices started asking their questions. What were the most pointed questions?
STUART TAYLOR: I don’t think he got three minutes. I could go back and count. But the most pointed questions came from the conservatives. Justices Scalia and Alito asked a bunch of hostile questions to Solicitor General Verrilli and no hostile questions to the other side. It became pretty clear that they, as well as Justice Thomas who was silent, are going to vote to strike the law down. They kept making the same points that the lawyer Paul Clement and Mike Carvin were making about this being an illimitable power. That they can make us buy broccoli, that they can make us buy car insurance - themes like that. And raising hypotheticals, something about burial insurance, in the case of Alito, raising that hypothetical: Everybody’s going to have to be buried.
It’s clear that the four liberals are going to vote to uphold the law. The two to watch, who seem up for grabs, were, arguably, Chief Justice Roberts and Justice Anthony Kennedy. Both of them, especially Roberts, were very tough on Don Verrilli, the solicitor general. Here are some samples of Roberts: a hypothetical, on emergency services, could they make us all buy cell phones, the broccoli thing, the car thing, requiring people to buy insurance for pediatric care, people who don’t have children, to subsidize others. And most importantly, I suppose, “all bets are off,” something he said twice, meaning: If we uphold this, there’s nothing Congress won’t be able to do.
JACKIE JUDD: Which justice said that?
STUART TAYLOR: That was Chief Justice Roberts.
JACKIE JUDD: And did Roberts and Kennedy give an equally-challenging time to Clement?
STUART TAYLOR: No. Kennedy was a little less hard on Verrilli, but the tenor of his comments was similar to Roberts, that this really can’t be limited.
Each of them asked kind of musing, philosophical questions of Clement and Carvin that sounded a little more like they were just making sure that all the bases were touched, and they didn’t sound so much as though: I’m not buying your argument.
JACKIE JUDD: What was the role today for the liberal justices? What did they seize on?
STUART TAYLOR: All of them were very active. Justice Breyer, as is his wont, was asking long, hypothetical questions that would be hard to summarize.
Justice Kagan was a little punchier. One thing she said, for example, that they lawyers for the challengers were making a big point about this forces young, healthy people to subsidize old, unhealthy people. Justice Kagan said: Well, eventually the subsidizers all become the subsidized. As in: We all get old.
Justice Ginsburg kept analogizing this to the Social Security system. Her basic point was: That is young-subsidizing-old, too. And we do that as a government program with a tax. If that’s OK – and that is OK – why can’t we do it with a more open, commercial system that involves private insurers in this context. That was one of her main points.
Justice Sotomayor asked a lot of questions. One of my favorite moments was when Justice Breyer was asking was one of his long – good – hypotheticals, just hard to summarize, it kind of interrupted Kagan and a while later someone said, “Let’s get back to Justice Kagan’s question” and she said, “I’ve forgotten my question.”
JACKIE JUDD: Stuart, it’s a little risky sometimes, I think, to judge how a justice will rule based on the way he or she questions during the arguments. But everything you’ve said today makes it sound like the federal government was very much on the defense today, far more than the states. Fair characterization?
STUART TAYLOR: I think that’s a fair characterization. For that reason I heard some people coming out of the arguments – and I’m no better prognosticator than some of the others are – saying for sure the law is going to be struck down 5 to 4.
But others were saying they’re not so sure. They thought the law might be upheld. They thought that both Kennedy and Roberts might go over to the other side. Even though that’s not how they sounded today. And then part of the thinking is that if Kennedy gives a majority to the liberal side, rather than be in the dissent in a 5-4, Roberts might join the majority, too, in order to be able to write the opinion himself and control how broad it is.
JACKIE JUDD: Interesting. We’ll hear from you again tomorrow. Stuart Taylor will be back with us tomorrow at the conclusion of the hearings.
And another reminder that at 11 a.m. Eastern on Thursday, Stuart will be joined by Tom Goldstein of SCOTUS blog and Julie Rovner of NPR for a 30 minute live webcast. The panel will reflect on this week at the court and also answer your questions, which you can send to us at email@example.com. For now, I’m Jackie Judd. I’ll see you here tomorrow.