The talking heads decided on Tuesday that the insurance mandate in "Obamacare" had taken a beating before the Supreme Court, based on the "hostile" and heavy questioning of the administration's attorney by the justices. They also thought the administration's chief attorney, the Solicitor General, came off badly during the questioning. One prominent commentator twittered that the session was a "train wreck" for Obama's side.
Nonsense!
Even if the foregoing were true, none of it matters. Contrary to TV and the movies, judges are seldom swayed by oral argument. Legal folk are trained to the written word in law school, and judges generally decide cases on the attorneys' briefs. They nevertheless like to work the attorneys over the coals, especially the attorney seeking to overturn a lower court decision, as the administration is here. In part the justices want to be sure that they send a message to their fellow judges on the lower bench that the Supremes have really respected the lower court and therefore have put the appellant through the mill. So it is always difficult to predict a decision on the basis of the Supremes' questioning because in reality they are talking to multiple audiences. (More on that perhaps in a later posting.)
Nevertheless, there may be two flags in yesterday's argument that might be predictive. In all the "expert"commentary about yesterday's oral argument, virtually all the court watchers overlooked these two statements by the justices.
One comment was by Chief Justice Roberts in addressing the attorney opposing the mandate: "I don't think you're addressing their main point, which is that they are not creating commerce in health care. It's already there, and we are all going to need some kind of health care. Most of us will at some point."
Roberts is NOT saying he agrees with the administration's argument but that the opponents haven't met the argument to Roberts' satisfaction. That's a biggie. Maybe Roberts will reread the briefs (or his clerk will) and conclude that the administration's argument was indeed met. But maybe not. What is seemingly clear is that Roberts has grasped the central point of the administration's argument. This is very important, especially when Scalia and Alito refused to admit that this is the central point and instead preferred to talk about broccoli, i.e. fool around with hypotheticals based on the premise that the feds are creating a new form of commerce and thereby could perhaps push the Commerce clause even further someday to force everybody to eat broccoli.
Even if Roberts has recognized the administration's central point, it doesn't mean he will consider the presently uninsured to be now part of health care commerce so that they can be regulated, i.e. made to buy health insurance. Are the uninsured PRESENTLY in or outside of the commerce of health insurance? That's the next question.
It is tantalizingly addressed by Justice Kennedy in a most remarkable comment that, also remarkably, got little notice: "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 of other industries. That's my concern in the case."
Both of Kennedy's sentences are somewhat astonishing. In the first, his use of "uniquely proximately" is very heavy stuff. In legal argument, each of these words is heavily freighted. "Uniquely" doesn't just mean "sort of unusual" as it often seems to in common parlance. In the strict sense, something can't be "very unique" because something is either unique or it isn't. It's like being pregnant. You are or you're not. Here Kennedy is saying that the uninsured at issue in the case are absolutely unlike other non-users of some commercial product such as the non-broccoli eater or the non-car buyer that opponents of the mandate hypothesized. Thus, he seems to be saying, we don't have to worry that upholding the mandate opens the Commerce clause to cover everything imaginable.
His use of "proximately" is also interesting, suggesting as it does the legal doctrine of "proximate cause", the delight of first-year law students and Inspector Clouseau movies. "Proximate cause" deals with whether someone, through setting off a chain of events, causes a bad outcome for which he should be liable. The butterfly in Japan who flaps his wings may cause a tornado in Kansas but Dorothy probably won't succeed in holding him liable for the house being blown away. He's the "cause" per a meterologist, but most courts would likely consider him insufficiently proximate.
So apparently Kennedy is not just saying that the uninsured are but an illness or accident away from affecting a stream of commerce. They are uniquely so, and therefore all the worry about the insurance mandate being a slippery slope to all kinds of federal intrusion under the Commerce clause is misplaced. And they are "very close" to "proximately" affecting health insurance and health care costs. Are they close enough for Kennedy? We shall see after he's had a while to think about it.
His second sentence is one rarely heard in an appeals court: "That's my concern in this case."
Very seldom do judges so explicitly identify where they are in a case. They commonly don't even identify the issue they really care about but hide it behind a smokescreen of a variety of questions. Sometimes, perhaps, they don't know themselves what really is central to them in the case until they engage with the attorneys and their fellow judges in oral argument. Here Kennedy is doing the almost unbelievable, putting in neon lights just exactly where he is about this case at the close of oral argument.
And, as I read the transcript, the administration's much-maligned attorney helped Kennedy to get to that point and to possibly perceive, upon further reflection, that the insurance mandate is indeed constitutionally within the Commerce clause. We may have witnessed the almost never-occurring visible persuasion of a Supreme Court justice by oral argument. For those who love the messy tangle and excitement of appellate argument, this case is extremely exciting and historic even if it weren't so important to the future of the country.
The "expert" commentators are misled in thinking the anti-mandate attorneys did a slap-up job of argument, at least as I read the transcript. In fact, it was the anti-mandate attorneys who got slapped by the justices, especially when Roberts reproached them for not addressing the administration's main argument. In addition, the anti-mandate attorneys failed to argue the law and the facts. Instead they spent almost all their time in either attacking the policies set forth in the legislation (and thus incurred the justices' admonitions because the Supreme Court cannot pass judgment on the wisdom of Congressional enactments), or they wasted time making political speeches about freedom, rather like Mitt Romney reciting "America the Beautiful", i.e. it's fun and it's easy but it's not legal argument. Maybe they were smoother than the administration's attorney, but they didn't deliver the goods. Roberts and Kennedy seem to be signaling that the administration's attorney did.
Or I've got it all wrong. Maybe Kennedy and Roberts were playing the "keep 'em guessing" game, saying one thing in court and voting something else in the decision. Or maybe they were persuaded but only temporarily or only partially.
We shall see. Conception has occurred but we shall have to wait for months for the birth of the decision. At least it won't be nine months of waiting.
Meantime, what IS this thing the GOP has about broccoli? George Bush the First made a point of telling us all that he hates it. And now it's part of a pseudo-legal argument before the Supreme Court in what may be one of the biggest cases in our history.
So let's all go eat broccoli, my fellow Democrats! That'll show 'em!
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