Day Three Q & A — Last Chance For Questions!


Thanks for tuning in once more.  Please post any questions you have on today’s arguments, or the health care case generally, in the comments below.  Dom will answer them as they come in from 4 to 5 p.m.  (Please refresh your screen periodically by pressing F5, or clicking on your refresh icon, to see new comments and answers.  They will not pop up automatically.)

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4 Responses to Day Three Q & A — Last Chance For Questions!

  1. Jenn says:

    After hearing all of the arguments, do you have a sense of what the Court will do?

    • domperella says:

      Jenn: As you’ve probably seen, some members of the press corps are engaging in pretty aggressive speculation — saying the Court will strike down the mandate, will strike down the whole law, etc. I think they’re overreading the arguments a little bit. Any of those things are certainly possible — but it’s also entirely possible the whole law will be upheld.

      The reason I don’t think a prediction is really possible is because, on each of the major issues, several key members of the Court offered ambiguous signals about where they’re leaning. That was true of Justice Kennedy and Chief Justice Roberts on the mandate. And it was true of Chief Justice Roberts on severability. And to complicate matters further, the legal tests the Court is using to decide these questions appear to be in flux on severability and Medicaid. It’s a complicated situation. I wouldn’t put too much stock in any predictions at this point.

  2. smarotta says:

    The Court-appointed amici had the unenviable job of defending positions supported by neither of the parties. How do you think they did? Did the justices treat them differently at oral argument?

    • domperella says:

      You’re right, that is a tough task. I think Robert Long, who argued on the first day that the Anti-Injunction Act applies, had the better assignment; his legal argument was plausible, and it’s been accepted by several lower-court judges. H. Bartow Farr III, who argued today, had a tougher job. It’s very hard to argue that the entire ACA should stand if the mandate falls — his assignment — when Congress squarely found in the statute that the mandate is tightly linked to the guaranteed issue and community rating provisions.

      Anyway, as you suggest, the Justices tend to be more respectful of, and lenient with, court-appointed counsel than they sometimes are with lawyers who have chosen their own legal positions. At the end of the day’s argument, each court-appointed lawyer got a public thank-you from Chief Justice Roberts (as is the custom). And even if the Court rejects their positions, they still got to argue in the biggest Supreme Court case in years!