First things first: nobody can predict how the Supreme Court will rule on the Affordable Care Act (ACA) after three days of hearings this week. Only the nine robed justices who peppered attorneys from both sides with tough questions can know what the final decision will be -- likely to be determined when they vote in a private conference later this week, but a mystery to the public until a formal written decision is released.
The oral arguments did provide the first (and only) public venue for the Court to question the assertions attorneys from both sides were making about the issues at hand. So court watchers and stakeholders alike set about reading the tea leaves, trying to divine from lines of questioning or tones of voice how the justices might be leaning.
Texas Attorney General Greg Abbott, a vocal critic of the ACA and a party in the legal challenge, released a statement after Tuesday’s argument on the individual mandate, portraying confidence that a majority of justices appeared to side with the states.
“Bottom line is it looks like a very strong day for the Texas case in front of the U.S. Supreme Court,” Abbott said. “The justices seemed to largely agree with the position the state has taken all along, and that is that Obamacare changes the fundamental relationship between the government and individual.”
Florida Attorney General Pam Bondi, whose state filed the lawsuit with which all others were consolidated, shared Abbott’s outlook.
“I was encouraged by the justice's questions, especially the ones that exposed the federal government's inability to identify any meaningful limits on Congress's power,” Bondi said in a statement. “As the states have argued all along, if the federal government can compel citizens to purchase health insurance they do not want, then it can force us to purchase anything."
Jeffrey Toobin, a respected legal analyst for The New Yorker and CNN, walked out of Tuesday’s argument with the impression that the mandate was “in grave, grave trouble.”
"This law looks like it's going to be struck down," Toobin said on CNN. "I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong."
After Wednesday’s hearing on the ACA’s Medicaid expansion, though, Toobin saw better signs for the Obama administration on that provision.
Tom Goldstein, publisher of the SCOTUSBlog, shared Toobin’s sense of foreboding for the mandate after Tuesday’s deliberations. He also praised the performance of Paul Clement, former Solicitor General for the second Bush White House and lead attorney for the 26 states opposing the law, a sentiment that was shared by many court watchers.
New update posted.Paul Clement gave the best argument I've ever heard.No real hard questions from the right. Mandate is in trouble.— SCOTUSblog (@SCOTUSblog) March 27, 2012
But also like Toobin, Goldstein interpreted the Medicaid argument as more promising for the White House.
I've posted a second Medicaid argument update.The Court extended the argument. So far, the Medicaid extension looks safe, as expected.— SCOTUSblog (@SCOTUSblog) March 28, 2012
The Obama administration maintained its belief that the ACA would be upheld, going so far as to say there was no Plan B if the law were struck down. The presidential campaign’s Twitter feed took the issue to the public, asking supporters to explain how the reforms would benefit them with a #ILikeObamacare hashtag.
State Legislators for Progressive Health Care Reform, a group of nearly 1,000 lawmakers from all 50 states, vowed this week to continue working toward health care reform regardless of the Supreme Court’s decision. More than 500 members of the group, in cooperation with the Progressive States Network, signed an amicus brief filed with the Court in defense of the ACA.
“The Affordable Care Act has helped to provide a fundamental necessity to the people we serve,” Connecticut Rep. Elizabeth Ritter said in a statement. “Our struggle will not stop until we find solutions to ensure that children and families have access to the healthcare they need. I am proud to be a strong supporter of the Healthcare Act and will remain committed to this issue for as long as it takes.”
For now, though, everyone must wait.