Adam, after looking over the transcripts of today's oral argument with your usual incision and insight, could you answer one question: What the heck us up with Mr. Justice Kennedy?
I thought, as did a lot of people--including journalists, such as Jeffrey "This is a Train Wreck" Toobin, who were in the chamber itself--that Justice Kennedy seemed overtly, if genteely, hostile toward the individual mandate. Yet some informed opinion begs to differ, insisting that by the end of the session the justice had changed his mind.
Just get a load of this report on scotusblog.com, to which Ricochet member wmartin drew everyone's attention in a post earlier today. Toward the end of the argument, the report explains, Justice Kennedy took up an argument in favor of the individual mandate that Justice Breyer had just mentioned:
“I think it is true that, if most questions in life are matters of degree [Justice Kennedy said]," it could be that in the markets for health insurance and for the health care for which insurance was the method of payment “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.”
That was the core of Verrilli’s [that is, the solicitor general's] claim about what Congress had confronted, and Kennedy had just phrased it — not as the government’s argument — but as his own perception. In both tone and content, it was a sudden change.
To quote wmartin, "Kennedy ended the argument restating the Obama administration's case in his own words....we lost today."