By the end of Tuesday’s long-awaited oral arguments, the individual mandate — a crucial piece of President Obama’s health-care law — seemed to be in trouble. The solicitor general, charged with guarding the measure, had a rough outing under sharp questioning from the justices.
The result was that the two factions that had built their identities around the controversial law — one promising to defend it, the other to end it — were forced to consider a future without it. Proponents were hopeful; critics were encouraged. Neither had a Plan B.
“If they don’t uphold it, I suspect it will be a major, major issue in the elections — congressional and presidential — this fall,” said Sen. Patrick J. Leahy (D-Vt.). “The debate will be with the American people.”
Virginia Attorney General Ken Cuccinelli II (R), an opponent of the law, said he was buoyed by the arguments: “I went in cautiously optimistic about our prospects on the individual mandate, and I came out happier than when I went in,” he told reporters after the two-hour hearing.
Tuesday was the second of three days of oral arguments before the Supreme Court on the measure. But it was the one that counted most. The mandate that virtually every American must obtain health insurance by 2014 or pay a penalty is one of the linchpins of the legislation. Opponents say the mandate is unconstitutional, an improper extension of federal authority.
And so Washington’s attention was focused on a single room with the capacity of a high school auditorium.
The crowd included Attorney General Eric H. Holder Jr., Health and Human Services Secretary Kathleen Sebelius, lawmakers, state attorneys general, and dozens of journalists and lawyers. BlackBerrys were banned. It was a rare kind of moment in a town where senators tune out in hearings and House members speak to empty chambers.
There was nothing to do but listen.
“It reminded me [of] ‘Mr. Smith Goes to Washington,’ ” said Hans von Spakovsky, a lawyer at the conservative Heritage Foundation, recalling the scene in that movie when Jimmy Stewart’s character speaks to a rapt, and full, Senate chamber. “There are hardly ever any real debates . . . but that does happen in the Supreme Court.”
Lawyers in the crowd were most attentive to Justice Anthony M. Kennedy, who is expected to be a key swing vote in the case. In the first hour of arguments, Kennedy gave the law’s opponents hope by asking skeptical questions.
“Do you not have a heavy burden of justification,” he asked Solicitor General Donald B. Verrilli Jr., “to show authorization under the Constitution?”