Supreme Court Justice Anthony Kennedy, regarded as the swing-vote in the Obamacare hearing, disagreed with his more liberal colleague, Justice Sonia Sotomayor, when she was making an argument against overturning the entire health care bill.
The disagreement hinged on the question of what would be a greater act of judicial activism: overturning all of Obamacare, or simply overturning the individual mandate and leaving the rest of the law in place.
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“Why don’t we let Congress fix it?” Sotomayor asked, referring to what would remain of Obamacare without the individual mandate.
Justice Antonin Scalia and attorney Paul Clement suggested that “legislative inertia” would prevent a repeal or substantial overhaul of Obamacare, but Sotomayor turned that argument against Clement. She argued that the Supreme Court should not decide to overturn the whole law just because the court doubts that Congress would do a good job of fixing the part of Obamacare.
Sotomayor suggested that such a reason for repealing the bill would amount to judicial activism. “Are you suggesting that we should take on more power to the Court?” she interjected. “Because Congress would choose to take one path rather than another. That’s sort of taking onto the Court more power than one I think would want.”
When Deputy Solicitor General Edwin Kneedler repeated that idea later in the oral argument, Kennedy rejected the position. “When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act,” Kennedy said, before continuing his counterargument:
It can be dangerous to read too much into a justice’s comments during oral arguments, but that line of reasoning suggests that the swing voter on this case — who expressed deep skepticism about the individual mandate yesterday — leans toward overturning the entire law in the event that the mandate is found to be unconstitutional.
