So what does that all mean? Advocates on both sides of the case took Kennedy’s statements as a signal that he and the court will rule in their favor.
“I am still hopeful that we have a majority on the court to uphold the act,” said Elizabeth B. Wydra of the Constitutional Accountability Center. She supports the law. “You know, hopefully, 6 to 3.”
Said Von Spakovsky, who opposes the measure: “I think it’s at least 50-50” that the mandate will be struck down.
“Oh, I think it’s better,” said his Heritage Foundation colleague Todd Gaziano, sitting across a conference table at the group’s headquarters. He had taken extra encouragement from a particular smile from Justice Samuel A. Alito Jr. Gaziano thought that was a sign that the Obama administration’s case was slipping away. “I think it’s an 80 percent chance.”
“I’d probably go to 60,” Von Spakovsky said, encouraged by his colleague’s optimism.
Outside the courtroom, things looked even more muddled.
“It’s just the damnedest thing in the 21st century,” said Russell Wheeler, a legal expert at the Brookings Institution. He was hitting a “refresh” button every three to four minutes, scanning law blogs. His heart sank and then rose as he heard secondhand reports about Kennedy’s questions. “With all this technology, we’re . . . basically looking for puffs of smoke to come out of the court.”
As Tuesday went on, a consensus began to emerge: It had been a good day for the law’s opponents, raising the odds that some or all of it will be overturned.
“Overall, there were four justices up there who articulated every aspect of our argument as well as we did, if not better,” said Randy Barnett, a Georgetown University law professor who has led the fight against the law. In an interview on the court steps, Barnett said he was counting Chief Justice John G. Roberts Jr., as well as Alito and Justices Antonin Scalia and Clarence Thomas. “I don’t see how we can ask for anything better than that.”
There also was criticism for Verrilli, who seemed to struggle at times in the face of skeptical queries.
The real importance of Tuesday’s arguments won’t be known until June, when the court is expected to announce its decision. Leading Democrats said there are no plans for a legislative fallback position if the mandate is overthrown, saying they could not decide how to respond until after reading such an opinion.
“You cannot base what the court is going to do based on an oral argument. It’s nice, it’s good to speculate as to what might happen, but believe me, those nine men and women are extremely smart, and a lot of times they probe with those questions, not in any way to tip their mitt as to how they’re going to vote on it,” Senate Majority Leader Harry M. Reid (Nev.) told reporters Tuesday afternoon.
Republicans were fuzzy on how they would proceed should the law be struck down. Senate Minority Leader Mitch McConnell (Ky.) on Tuesday would say only that if Republicans won control of the Senate in the fall, they would seek to replace the legislation with “something that makes more sense and is targeted at the problems that we actually have in American health care.”
At the end of the day, the parlor game wound up with this: On CNN’s “Situation Room With Wolf Blitzer,” Democratic strategist James Carville was trying to spin a Supreme Court defeat that hadn’t happened.
“I think this will be the best thing that has ever happened to the Democratic Party,” he said. If the law is struck down, and the health-care system reverts to its old problems, Carville said, that would be a good thing: “Then the Republican Party will own the health-care system for the foreseeable future. And I really believe that. That is not spin.”
Staff writer Paul Kane contributed to this report.