The answer is likely to come from Justice Anthony M. Kennedy or perhaps Chief Justice John G. Roberts Jr.
Both men fully joined in the rough 60 minutes of questioning for Verrilli. But they indicated that the case might be a closer call for them than for their colleagues.
If either were to save the health-care law — championed by Obama, passed by a Democratic-controlled Congress in 2010 and increasingly unpopular in public opinion polls — it seemingly would require a judgment that there is something unique about the health-care market that allows such regulation and that some line could be drawn to limit the government’s claim of federal power.
Tuesday’s arguments were the most dramatic so far of the Supreme Court’s three days of hearings on the Patient Protection and Affordable Care Act, and the session was perhaps the most remarkable one since the court decided the 2000 presidential election with its ruling in Bush v. Gore.
Outside the courthouse, one demonstrator was dressed as Lady Liberty, while another posed as a prisoner with a ball and chain. Down the street, Rep. Michele Bachmann (R-Minn.) rallied tea party supporters. Inside the chamber, Cabinet secretaries and members of Congress were scattered throughout the audience.
Roberts concluded the session by saying, “Counsel, we’ll see you tomorrow.”
On Wednesday, the court will consider whether the entire health-care law must fall if the individual mandate is found unconstitutional and whether the law’s expansion of Medicaid is an improper demand on the states, which help foot the bill for the program. The court is likely to issue its ruling in late June, in the midst of the presidential campaign.
Verrilli was first up at Tuesday’s oral arguments and was granted twice the usual time to make his case. The reception he received must have made the hour seem long.
He defended the law as a valid exercise of Congress’s power under the Constitution’s commerce clause to regulate interstate commerce. Lawmakers chose to tackle the problem of the uninsured, along with cost-shifting by people who do not pay for their medical care, by regulating health insurance, the principal method by which medical care is purchased, Verrilli said.
But the conservative justices soon moved the arguments used against the law from the beginning, particularly that it is beyond Congress’s authority to require people to purchase something they do not want.