It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant....And at the end of the argument, Kennedy asked "the most important question," whether "the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment." Goldstein added: "But he didn’t overtly embrace that. It will be close. Very close."
When the Solicitor General argued that the mandate does not require people to purchase health care, but instead merely regulates when and how they will pay for that care, Justice Kennedy seemed skeptical, asking whether Congress’s power to regulate commerce allows it to create commerce to then regulate.
AND: Lyle Denniston says:
If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.Denniston thinks the SG failed to convince Kennedy, but the then the lawyers for the challengers somehow undercut their own case in Kennedy's eyes. I need to listen to the recording and read the transcript. I think someone who genuinely hadn't decided might come at the lawyers on both sides with questions containing the doubt that he had about going their way so they could come forward with their strongest arguments.
ALSO: Adam Liptak writes:
“Can you create commerce in order to regulate it?” Justice Anthony M. Kennedy asked the lawyer, Solicitor General Donald B. Verilli Jr., only minutes into the argument.Liptak characterizes the argument as "unusually intense and pointed" — and 2 hours long.
Justice Antonin Scalia soon joined in. “May failure to purchase something subject me to regulation?” he asked.
Chief Justice John G. Roberts Jr. asked if the government could compel the purchase of cell phones. And Justice Samuel A. Alito Jr. asked about forcing people to buy burial insurance.
The conventional view is that the administration will need one of those four votes to win, and it was not clear that it had captured one....