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2 Things to Remember Following SCOTUS Oral Arguments on Obamacare Case

Oral arguments just ended at the Supreme Court in King v Burwell, the most serious legal challenge to the Affordable Care Act since the 2012 case questioning the individual mandate’s constitutionality.

The Wall Street Journal had an excellent liveblog of the arguments if you want to get caught up. But remember that at this point two years ago, Obamacare was declared dead following three brutal days of oral arguments in which Solicitor General Donald Verilli was roundly agreed to have gotten his tuckus kicked. Sample headlines at the time:

Things didn’t turn out that way. Stories have since emerged that Chief Justice John Roberts initially opposed the individual mandate only to later concoct the tax defense to uphold the court’s legitimacy, or that there was horse trading going on, or neither, or both. Any way you have it, reading tea leaves from oral arguments can lead an entire pundit class astray.

Meanwhile, particular attention was paid this a.m. to Justice Anthony Kennedy, considered a potentially crucial swing vote, and his questioning of the challengers. Per the WSJ’s liveblog:

Justice Anthony Kennedy was next, saying it seemed to him, as well, as if there was “a serious constitutional problem” with the argument that states were supposed to choose between setting up their own exchanges and forfeiting the tax credits.

However, over-focusing on Kennedy was the mistake many court-watchers made last time. Most 2012 scenarios for the court saving Obamacare involved Kennedy crafting a limiting principle allowing the Commerce Clause to compel action within certain situations. Instead Kennedy joined with the strongly-worded dissent in NFIB v Sibelius, while Roberts emerged as the surprise deciding vote. Despite the initial consensus view of Kennedy as the swing justice, he was later rumored to be the staunchest opponent to the eventual majority decision.

It’s possible we’re all repeating that mistake this time around. Kennedy’s comments were picked apart this morning, but note how little we learned of Roberts’ thoughts:

In short, there will be many attempts to game the Supreme Court’s decision from the arguments today, some of them quite smart. But remember that we don’t actually know anything.

[Image via Shutterstock]

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