Oral arguments have started at the United States Supreme Court on ObamaCare. Don’t be fooled by what you see or hear. Supposedly today was a train wreck for the ObamaCare mandate. It was a bad day for Solicitor General Donald Verrilli who apparently was very unprepared (a very common occurrence in this administration), but thankfully for Mr. Verrilli he had four Supreme Court justices who were able to make their own arguments for him. Liberals seemed shocked that the four more open-minded justices asked tough questions. Just look at the response by CNN’s Jeffrey Toobin.
Toobin is panicking over two votes. It seems like the smart money on this is in it being upheld. If I had to make a prediction right now I’d go with this analysis.
If Justice Kennedy does decide to uphold the individual mandate, he will try to construct a limiting principle, and hopefully one that is more defined than the obviously unadministrable question of “unique, proximate, very-closeness.” This is why people speculate the Chief Justice may vote with Justice Kennedy if he decides to uphold the law, in order to provide a more workable limiting principle.
So a 6-3 vote in favor of the mandate seems like the most likely ruling. Not because it’s the right ruling, but because Kennedy is a wild card and Chief Justice Roberts will try to limit the damage. It’s been a long time since the Supreme Court made a major decision that limited the goverment or the commerce clause.