After Tuesday's oral arguments, in which Justice Kennedy posed pleasantly tough questions to Solicitor General Verrilli, it was hard for conservatives not to get excited about the prospects for an imminent Supreme Court decision striking down the individual mandate.
The next morning's arguments could have only redoubled optimism on the right. The main question before the Court on Wednesday—"severability"—was premised upon the best-case scenario: Imagine that the Court holds the individual mandate unconstitutional. Is the best remedy to nullify just the mandate, or the mandate and a few other provisions ... or Obamacare altogether? It is the stuff that Tea Party dreams are made of.
And in this case, the severability question is marked by many of the same characteristics that complicate debate over the merits of the mandate itself: it largely will turn not on questions of analogous precedent, but rather on matters of deeper principle and the role of the courts in constitutional, republican government. Congress enacted the Affordable Care Act in one piece; its passage depended on logrolling, deal making, and compromise. If one piece—indeed, the central piece—of the Act is eliminated, should the Court leave the rest of the law intact, or should it throw out the entire, comprehensive bill?
Several solutions present themselves, and each could plausibly vindicate the goal of "judicial restraint." The Court could strike down just the mandate, leaving the rest of the law stand. This would avoid judicial nullification of myriad provisions that are themselves constitutional, but at the same time this would effectively enact a version of Obamacare that no congressman actually wants.
Or the Court could strike down not just the mandate, but Obamacare altogether. This would strike the opposite balance: it would avoid the problem of rewriting Obamacare, yet it would also be an act of judicial power reaching far beyond just the unconstitutional mandate. And any middle ground would also implicate both concerns.
In most cases, Congress makes its preference clear by including in the law a "severability clause," which announces that the rest of the law should remain in effect even if one or more individual provisions are struck down. By including a severability clause, the congressmen voting for the bill (and the president signing it) endorse the Court leaving in place the remainder of the law.
But Congress and the president did not include a severability clause in Obamacare.
So in this case, the lawyers arguing on Wednesday each had to appeal to their view of legislative intent. The plaintiffs argued that if the mandate—Obamacare's cornerstone—is struck down, then the entire facade must fall with it. The government had argued on Tuesday that the mandate was a "necessary and proper" adjunct to the guaranteed-issue and "community rating" provisions; it continued that theme on Wednesday by arguing that if the mandate falls, then so must those other two provisions. The Court appointed a third lawyer to argue that even if the mandate is struck down, the entire remainder of Obamacare must remain in effect.
As with Tuesday's arguments, these arguments received excellent coverage from the Supreme Court beat writers, including SCOTUSblog's Lyle Denniston, as well as at Bloomberg's "Health Care at the High Court" blog. And shortly after those arguments concluded, the justices reconvened in the afternoon to consider a separate constitutional challenge to Obamacare, on the question of whether the law violated the Constitution's federalism by threatening to cancel a state's Medicaid funds if the state failed to expand citizens' Medicaid eligibility.
With oral arguments now behind us, we can only await the decision—probably in late June, although given the gravity of the case it could well come later in the summer. In the meantime, veteran Court watchers will counsel against predicting the final outcome based on oral arguments alone; a justice's questions or tenor often do not reflect his true stand on the issue.
But in this case, there is a further caveat: even if a justice's comments at oral argument did reflect his own conclusions, we must not assume that his conclusions this week will not change in the weeks to come. And of course, the justice I have in mind on this point is Justice Kennedy.
Kennedy is not just the "swing justice," poised in the middle of the Court in this particular case. He is also known to reconsider his initial conclusions once he starts seeing draft opinions. As any lawyer knows, a legal argument that seems compelling in conversation might well fall apart once it is put to paper; sometimes an argument "just won't write." His former clerk, law professor Michael Dorf, explained this process Wednesday morning to Bloomberg Radio's Tom Keene and Ken Prewitt:
He doesn't fully know how he should be deciding a case until he "tries it on." That is, he will see if a position he wants to take will, as he says, "write." That is, he will try to draft an opinion; if he finds it persuasive to himself, he'll stick with it. He sometimes finds, "you know, I just can't make this work, I'm going to come out the other way." So it could well be the case that he hasn't decided yet, and he might vote at the conference at the end of the day today or Friday and still not have decided before he sees how it comes out.
Lawyers familiar with the Supreme Court's decision in Planned Parenthood v. Casey (1992) know this all too well. As James Simon recounted in The Center Holds, seven of the Court's nine justices voted at post-argument conference to reverse Roe v. Wade and strike down Pennsylvania's anti-abortion laws. Chief Justice Rehnquist happily assigned himself the majority opinion—but in the weeks that followed, Justice Kennedy reconsidered his vote. With Justices David Souter and Sandra Day O'Connor, who also had changed their minds, a new opinion was secretly drafted, preserving Roe's basic protection of abortion. When word spread within the Court that the three Justices had changed their minds, it "was as if a neutron bomb had exploded," Simon recounted. "Chief Justice Rehnquist attempted to talk Kennedy out of his support for the joint opinion, and Justice Scalia, less diplomatically than the chief, expressed his outrage to Kennedy." Yet Justice Kennedy did not return to his original conclusions; in the process of drafting the opinion, he had irreversibly changed his mind.
And so the constitutionality of Obamacare's individual mandate will not be decided inside the Court's conference room this week. The justices may well vote, assign opinions, and start writing opinions, yet nothing will truly be settled for weeks, until the opinions start to take shape and the justices have time to ruminate.
As interesting as this week's oral arguments have been, the most important oral arguments may have yet to come. They will happen in the Supreme Court, to be sure, but not in the courtroom, and not in the public eye.
Adam J. White is a lawyer in Washington, D.C.