The effort had setbacks, too. On the appellate level, two of the brightest stars in the conservative legal firmament ruled in the law’s favor. Orin Kerr, a law professor at George Washington University and a former clerk for Justice Anthony Kennedy, told me, “the two top choices for Supreme Court picks on the Republican side are probably Brett Kavanaugh and Jeff Sutton. Sutton voted to uphold the mandate on the merits and Kavanaugh voted to say it was not justiciable.” Judge Sutton, by the way, is a former clerk for Justice Antonin Scalia.
But those setbacks were nothing compared with the luck Republicans had during the oral arguments before the Supreme Court. Paul Clement, the talented lawyer prosecuting the case against the Affordable Care Act, gave what most everyone agreed was the performance of his career. Don Verrilli, the solicitor general of the United States, gave what most everyone agreed was one of the worst performances of his. He began by choking on water and seemed to never quite recover his composure. “He was passive. He was stumbling. He was nervous,” CNN legal analyst Jeffrey Toobin told Politico. “I was just shocked.”
For all the Republican Party had done to make the mandate’s constitutionality a live issue, the oral arguments gave their cause a credibility that strategic positioning couldn’t buy. The two arguments had met in front of the Supreme Court and the argument against the mandate’s constitutionality had clearly won. Everything up until that point could have been written off as conservatives convincing conservatives of something conservatives already wanted to believe. But on that day, the argument against the individual mandate met the argument for the individual mandate, and the argument against it won — even in the eyes of the mandate’s supporters.
After that, confidence that the mandate would survive the court collapsed. A poll of former Supreme Court clerks taken before the oral arguments found that only 35 percent thought the court would overturn the mandate. After the oral arguments, that rocketed up to 57 percent. A poll of top constitutional law scholars found that 19 of 21 thought the mandate was constitutional, but only eight were confident that the Supreme Court would uphold it. InTrade, a political betting market, puts a 67 percent chance on the mandate being overturned.
What the conservative movement has done — with a big assist from Verrilli — is build a permission structure that would permit the Republican appointees to the Supreme Court to rule against the individual mandate. They had taken a legal campaign initially dismissed as a bitter and quixotic effort based on a radical and discredited reading of the commerce clause and given it sufficient third-party authentication to succeed. If the Supreme Court rules against the mandate, it will no longer be out on a ledge. It will be in lock step with the entire Republican Party, many polls, a number of judges, the impression the public has gotten from the media coverage and the outcome of the oral arguments.
And that’s what has changed from two years ago. When this campaign began, it was unthinkable that the Supreme Court would indulge it, even if some on the Supreme Court were sympathetic to its aims. “There is a less than 1 percent chance that the courts will invalidate the individual mandate,” Kerr said at the time. Today, it’s entirely thinkable that the Supreme Court will indulge it, and that means that the members of the Supreme Court, who care deeply about protecting their institution’s legitimacy, are free to rule in whichever direction they want. We’ll find out what direction that is on Thursday.