The second day of Supreme Court oral arguments on ObamaCare has supporters of the law woprried, mainly over the line of questioning pursued by swing vote Justice Anthony Kennedy. Business Insider's headline says it all: "People Are Saying That Obama's Healthcare Law Got Massacred At The Supreme Court Today." Left wing Mother Jones was even more despairing: "Obamacare's Supreme Court Disaster," read its headline. CNN's Jeffrey Toobin called it a train wreck for the administration:
"This was a train wreck for the Obama administration. This law looks like it's going to be struck down," Toobin said on CNN. "All of the predictions including mine that the justices would not have a problem with this law were wrong."
But it is too soon for conservatives to pop any champagne corks. Questions do not always indicate how a justice will vote, and during the later part of the argument, some harder questions were aimed at opponents.
It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli. On top of that, Clement delivered a superb presentation in response to the more liberal Justices' questions. Perhaps the most interesting point to emerge so far is that Justice Kennedy's questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden. At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute's constitutionality.
Perhaps the best indication of what the left believes is that the left is already identifying its scapegoat. Mother Jones:
Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.