Following today’s oral arguments, some are making the case that there are two swing votes on the constitutionality of President Obama’s national health care — Chief Justice John Roberts and Justice Anthony Kennedy. Though I agree that Kennedy could go either way, based on today’s arguments, I’d be extremely surprised if Roberts voted to uphold the law.
Those who say that Roberts’ vote is in play point out that he asked critical questions to both sides. But a closer look reveals that when he was badgering President Obama’s solicitor general Donald Verrilli, he was speaking for himself, but when pressing lawyers opposing the law — Paul Clement and Mike Carvin — he created distance from the position by noting he was articulating the position of the government.
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There are a number of examples of him forcefully challenging the Obama administration’s key arguments, using such phrases as “it seems to me,” which I highlight below (with emphasis).
For instance, here’s Roberts on the idea that nobody knows when they’ll need health care:
On the attempt to argue that the mandate was pushing the means of financing health care:
On how the mandate goes far beyond forcing people to finance potential health care emergencies:
On the lack of a limiting priniciple if the mandate is upheld:
He continued on that point to say, “what I’m concerned about is, once we accept the principle that everybody is in this market, I don’t see why Congress’s power is limited to regulating the method of payment…as it does in any other area. What other area have we said Congress can regulate this market but only with respect to prices, but only with respect to means of travel? No. Once you’re — once you’re in the interstate commerce and can regulate it, pretty much all bets are off.”
Contrast that with his much more passive attempts to get opponents of the law to respond to the government’s argument that everybody is already in the health care market. For instance (again, with my emphasis):
And:
And (responding to an alalogy involving the mortgage market):
To be sure, it’s theoretically possible Roberts will vote to uphold the law. Some have suggested that he could do so (assuming Kennedy votes to uphold) to make the ruling seem less contentious or to have more control over the drafting of the opinion. But those are different issues. If we’re going based on oral arguments, it seems he’s very likely to vote to overturn the mandate.
