Following today's oral arguments, some are making the case that there are two swing votes on the constitutionality of President Obama's national health care -- Chief Justice John Roberts and Justice Anthony Kennedy. Though I agree that Kennedy could go either way, based on today's arguments, I'd be extremely surprised if Roberts voted to uphold the law.
Those who say that Roberts' vote is in play point out that he asked critical questions to both sides. But a closer look reveals that when he was badgering President Obama's solicitor general Donald Verrilli, he was speaking for himself, but when pressing lawyers opposing the law -- Paul Clement and Mike Carvin -- he created distance from the position by noting he was articulating the position of the government.
There are a number of examples of him forcefully challenging the Obama administration's key arguments, using such phrases as "it seems to me," which I highlight below (with emphasis).
For instance, here's Roberts on the idea that nobody knows when they'll need health care:
"Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So there is a market there. To -- in some extent, we all participate in it. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?"
On the attempt to argue that the mandate was pushing the means of financing health care:
"That -- that it seems to me, it's a -- it's a passage in your reply brief that I didn't quite grasp. It's the same point. You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren't purchased for their own sake, either."
On how the mandate goes far beyond forcing people to finance potential health care emergencies:
"Well, but it's critical how you define the market. If I understand the law, the policies that you're requiring people to purchase involve -- must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment, substance use treatment or pediatric services, and yet that is part of what you require them to purchase. You cannot say that everybody is going to participate in the substance abuse market or pediatric services and yet that is part of what you require them to purchase."
On the lack of a limiting priniciple if the mandate is upheld:
"I don't see how we can accept your - it's good for you in this case to say oh, it's just insurance. But once we say that there is a market and Congress can require people to participate in it, as some would say -- or as you would say, that people are already participating in it -- it seems to me that we can't say there are limitations on what Congress can do under its commerce power, just like in any other area, all -- given significant deference that we accord to Congress in this area, all bets are off, and you could regulate that market in any rational way."
He continued on that point to say, "what I'm concerned about is, once we accept the principle that everybody is in this market, I don't see why Congress's power is limited to regulating the method of payment...as it does in any other area. What other area have we said Congress can regulate this market but only with respect to prices, but only with respect to means of travel? No. Once you're -- once you're in the interstate commerce and can regulate it, pretty much all bets are off."
Contrast that with his much more passive attempts to get opponents of the law to respond to the government's argument that everybody is already in the health care market. For instance (again, with my emphasis):
"Well, Mr. Clement, the key to the government's argument to the contrary is that everybody is in this market."
"I don't -- I don't think you're addressing their main point, which is that they are not creating commerce in -- in health care. It's already there, and we are all going to need some kind of health care; most of us will at some point.
And (responding to an alalogy involving the mortgage market):
"No, no, that's not I don't think that's fair, because not everybody is going to enter the mortgage market. The government's position is that almost everybody is going to enter the health care market."
To be sure, it's theoretically possible Roberts will vote to uphold the law. Some have suggested that he could do so (assuming Kennedy votes to uphold) to make the ruling seem less contentious or to have more control over the drafting of the opinion. But those are different issues. If we're going based on oral arguments, it seems he's very likely to vote to overturn the mandate.