Much can happen between now and the expected ruling this summer, and a far more moderate tone may emerge. Broad statements come more easily in the court’s intense oral arguments than in majority opinions. Between now and the decision, supporters and foes of the law will be able to point to evidence that their side will prevail.
But the rhetoric of the past three days led Solicitor General Donald B. Verrilli Jr. to make an unusual and emotional plea to the justices for restraint. He asked them to respect Congress’s judgment rather than insert themselves into a partisan battle that has roiled the political landscape since the law was passed in 2010.
“The Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment,” Verrilli told the justices.
“Maybe they were right, maybe they weren’t, but this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it.”
Verrilli made a direct appeal to Justice Anthony M. Kennedy, considered pivotal in the case because he is the conservative most often willing to side with the court’s liberal bloc. On Tuesday, Kennedy said he worried that the law’s mandate that almost every American either secure health insurance or pay a penalty undermines personal liberty and carries a “heavy burden of justification” under the Constitution.
Verrilli spoke about “millions of people with chronic conditions like diabetes and heart disease” who would be “unshackled” from their conditions and about families who would be freed from financial harm caused by high medical costs. The law will help ensure that they “have the opportunity to enjoy the blessings of liberty,” he said.
Paul D. Clement, representing Florida and 25 other states objecting to the health-care law, responded that “it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”
The examination of the Patient Protection and Affordable Care Act was unlike any the court has conducted in decades. It has been nearly 50 years since the justices have devoted so much time to a subject.
Before this week’s arguments, many lawyers who practice before the court said privately that they thought the court’s precedents indicated that the Obama administration would emerge the victor. And the court’s four liberal justices showed themselves to be comfortable with the assertion of federal power in the law.