The consensus from the oral arguments on health care today at the Supreme Court seems pretty clear from twitter, the blogs, and the cable news networks: the big loser today was Solicitor General Donald Verrilli, who argued the case for the law.
Everyone is quoting Jeffrey Toobin’s claim that “this was a train wreck for the Obama administration. This law looks like it’s going to be struck down.”
Don’t get carried away.
As John Sides reminds us, there is some research linking oral arguments with Supreme Court decisions, so we shouldn’t ignore these hearings if we want to guess the final result. But the evidence hardly points to a strong correlation between lawyer performance and final outcomes. So if you thought the mandate was doomed to begin with, you’ll probably be a bit more certain of this outcome now. If you thought it was a slam dunk that the law would be affirmed, you should back off of that a bit.
But the truth is that this case today is pretty much where everyone expected to be from the beginning: In the hands of Justice Anthony Kennedy, although Jonathan Cohn heard potential openness to the government’s arguments from Chief Justice John Roberts as well.
If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.
Beyond that, and after tomorrow’s final session, we’ll just have to wait, most likely until June. Anyone who claims to be certain of what the Justices are really thinking, especially the ones most likely to provide the margin, is just bluffing.