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Is Kennedy the only possible fifth vote for the government?

Lyle quite rightly suggests in his analysis of the argument that Justice Kennedy seems to be the government’s best hope for a fifth vote to uphold the Affordable Care Act.  But it is worth at least examining the possibility of a fifth vote from someone else.  Justice Scalia’s unrelenting hostility and Justice Thomas’s past decisions on the Commerce Clause eliminate them.  So that leaves Justice Alito and the Chief.

Justice Alito

Coming into the argument, both the Chief and Justice Alito seemed like possibilities for the Government.  But Justice Alito’s questions did not give supporters of the law much cause for hope.  His first set of questions to the Solicitor General — raising the hypothetical of people who will inevitably need burial services not purchasing burial insurance — were designed to undermine a basic premise of the government’s defense of the law as regulating economic conduct.  It is not natural to speak of someone who is simply standing on the street, not having insurance, as engaged in some sort of economic activity, he suggested. Tr. 8. He further asked several questions premised on the view that the mandate is not forcing people to bear the cost of their own inevitable healthcare, but rather is forcing young, healthy people to subsidize insurance companies (and, eventually, the insurance costs of others).  Tr.  9-10, 33-34.  The questions not only seemed to question the constitutional basis of the mandate, but also its basic fairness, suggesting an attitude of someone who is not looking for ways to uphold the statute.

But perhaps the most significant question — and the one most open to interpretation — was his invitation near the end of the SG’s argument for Verrilli to “express your limiting principle as succinctly as you possibly can.” Tr. 42.  You could imagine this as a helpful question, giving the SG the opportunity to address what was clearly a central concern to Justice Kennedy and the Chief. But it also could have been a hostile question, intended to demonstrate that the government cannot answer the question because it has no convincing limiting principle.

I actually think it was closer to the latter. Justice Alito often asks questions that go to the heart of the case — a commendable practice.  So it is difficult to read too much in the question standing alone.  But his other, openly hostile questions to the government, and his later relative silence when the challengers of the law took to the podium, lead me to think that he thought the question would be a difficult one for the government to answer.  Justice Alito asked no questions of the states’ lawyer, Paul Clement. And the two sets of questions he asked the lawyer for the private plaintiffs, Michael Carvin, were both effectively rebuttals to hostile questions asked by Justices Breyer and Kagan.

The Chief Justice

The Chief’s inclinations were a bit harder to read, but his questions did not provide much basis for hope for the law’s supporters either.  He asked a number of tough questions to the government.  The questions seemed less the result of concerns about any unfairness of this particular law than doctrinal concerns — for example, how to define the relevant market Congress is regulating here — and concerns about the breadth of any decision upholding the statute.

However, unlike Justice Alito, the Chief asked a number of skeptical-sounding questions of the challengers as well.  Many expressed doubt about the challengers’ parade of horribles, noting more than once that the government’s claims were based on allegedly unique aspects of the healthcare problem.  So, for example, when Paul Clement raised the specter of the government mandating the purchase of new cars to boost the auto industry, the Chief said, “the key to the government’s argument to the contrary is that everybody is in this market.  Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they’re regulating is how you pay for it.” Tr. 64.

At the end of the day, this question may simply demonstrate that the Chief thought the challengers were taking their arguments a bit too far, or were avoiding the harder arguments in the case, without his thinking that the government is right on the broader constitutional question.  But the supporters of the law may take away some measure of hope that the Chief (and, in my view, Justice Kennedy) recognize that Congress was facing a very difficult and nearly unique problem here and that as a result, upholding the law would not commit the Court to any significant broader expansion of congressional authority.  But both he and Justice Kennedy seemed quite concerned about the need for a doctrinally coherent limiting principle, and neither seemed particularly persuaded by the government’s answers today.

That may leave the Chief and Justice Kennedy dissatisfied with all the options they have been presented (particularly if, tomorrow, it becomes clear that the individual mandate cannot be severed from the broader, more attractive, features of the law). And in that circumstance, it is hard to predict a final outcome — the Justices will surely be giving the matter further thought over the next few days and may well come up with their own limiting principles or rationales.  For example, the government’s alternative argument that the mandate is a valid exercise of the tax power — which received very little attention today – might become more attractive as the week goes on.

All that said, the challengers have more to cheer about tonight than does the administration, which needs one more vote and has at best two potential fifth votes, both of whom seemed deeply skeptical of the individual mandate’s constitutionality today.

Recommended Citation: Kevin Russell, Is Kennedy the only possible fifth vote for the government?, SCOTUSblog (Mar. 27, 2012, 5:41 PM),