Tuesday’s historic oral argument on the constitutionality of Obamacare left some court watchers worried that the law was on the ropes. Jeffrey Toobin of the New Yorker and CNN pronounced the argument “a train wreck for the Obama administration," and predicted that the law would be struck down. Adam Liptak of the New York Times opened his account by describing the “barrage of skeptical questions” directed at Solicitor General Don Verrilli as he stood up to defend the law. There was certainly a basis for their assessment. Justices Antonin Scalia, Samuel Alito, John Roberts and Anthony Kennedy all asked tough questions of Verrilli, and no one has any doubts about where Justice Clarence Thomas stands on the matter, even though he predictably maintained his now-six-year silence as a sitting justice. The four more liberal justices all made clear that they viewed the Affordable Care Act’s mandate—the requirement that people who can afford to do so must purchase health insurance or pay a tax penalty—as constitutional. But it takes five votes to uphold the law. So will the law be struck down?
As Mark Twain might say, reports of Obamacare’s demise are greatly exaggerated. While the conservative justices expressed considerable reservations about the law’s scope, Justice Kennedy, the key swing vote, also noted, near the very end of the argument, that the unique context of the healthcare market may be sufficient to validate the “individual mandate.” The biggest challenge the government has faced in defending the law has been the articulation of a limiting principle, and by argument’s end it seemed that Justice Kennedy might have heard one that he could sign on to. If he does vote to uphold the law, it’s possible that Chief Justice Roberts will join him, in the interest of not having the case decided by a single vote, in which case the vote would be 6-3.