Prominent analyst thinks it’s too soon to say high court will reject ObamaCare mandate

Earlier today, I reported HERE that this morning’s oral arguments before the Supreme Court on the Affordable Care Act seemed to indicate that the measure may be in trouble.

Since then, Lyle Denniston, one of the nation’s most reputable court-watchers, has posted a DETAILED ANALYSIS  of today’s hearings that’s  less downbeat about the chances that ObamaCare will pass muster with the high court:

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., and a majority 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.

If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government.   But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in and expecting the demise of the mandate seemed decidedly premature. 

The Justices will cast their first votes on the mandate’s constitutionality later this week, and there are perhaps three months of deliberations that would then follow.  Much will be said and written within the Court in private during that time, and that obviously could affect the ultimate outcome. 




  1. Justice Thomas did not ask a question preserving his six year record of silence.

  2. I think Thomas muttered one question under his breath: “When’s lunch?”

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