One of the oldest cliches in reporting on oral arguments is that you can’t use them as a basis to predict the outcome. And that’s certainly true for health care. In March, there appeared to be widespread skepticism of the idea that the mandate was a tax.
Here’s what Justice Ruth Bader Ginsburg had to say during oral arguments on the idea that the mandate was a tax:
JUSTICE GINSBURG: A tax is to raise revenue, tax is a revenue-raising device, and the purpose of this exaction is to get people into the health care risk — risk pool before they need medical care. And so it will be successful, if it doesn’t raise any revenue, if it gets people to buy the insurance, that’s — that’s what this penalty is — this penalty is designed to affect conduct. The conduct is buy health protection, buy health insurance before you have a need for medical care. That’s what the penalty is designed to do, not to raise revenue.
In the end, she sided with the majority opinion that the mandate was a tax, although she filed a separate opinion arguing it was also constitutional under the Commerce Clause.