The U.S. Supreme Court released audio recordings and written transcripts of the oral arguments on the Patient Protection and Affordable Care Act (which some call “Obamacare”) that took place before the Supreme Court on March 26 – March 28, 2012.
While much commentary has focused on hints of opposition to the law in questions posed by Conservative Justices on the Court, a reading of the transcripts of the hearings shows questioning by Justice Kennedy and Chief Justice Roberts that also suggested potential openness to ruling in favor of the law.
The audio recordings and transcripts of the oral arguments in their entirety were posted on the Supreme Court’s official website on the Patient Protection & Affordable Care Act (the “Affordable Care Act”).
The Role of Supreme Court’s Questioning of Attorneys During Oral Arguments
There has been much commentary in the press about the questions that the Justices posed to the attorneys during the oral arguments, including speculation on what they may mean as to how the Justices will decide the case, and what would be the political ramifications if the Court were to strike down the Affordable Care Act or just the individual insurance mandate within it.
Some experienced attorneys and legislators, however, have pointed out that the questions Supreme Court Justices ask historically are not an accurate predictor of how the Court will rule.
Timothy R. Johnson, a political scientist at the University of Minnesota, has conducted research on oral arguments before the Supreme Court in order to determine, how the Justices actually use questioning during oral arguments. In a report of his research published in the journal, American Politics Research, Dr. Johnson summarized his findings: “An investigation of the oral arguments and the Court’s majority opinions in a sample of cases from the Burger Court era shows that the Court gathers information during oral arguments and then uses this information when making substantive policy choices.”
In an earlier book, Oral Arguments and Decision Making on the United States Supreme Court, Johnson argued, based upon his research, that the justices appear to use questioning during oral arguments as a means to extract information not extensively covered in the written briefs filed before the court, and particularly to focus attention on policy concerns that they may be able use to build coalitions and consensus with other judges on the Court.
In his research, Johnson examined all the briefs filed by the parties and others (including Amicus briefs) in a sample of cases from the early 1970s through the mid-1980s, and compared the content of the briefs to the issues raised by the Justices during oral argument in those cases. He found that fully 80% of the questions raised by the Justices during oral arguments pertained to issues not raised or fully covered in the briefs. In addition, his data showed that the Justices’ questions focused heavily on the implications of their decisions on public policy.
Not Surprising Questions Posed by the Justices During Oral Arguments on the Affordable Care Act
Viewed in light of Dr. Johnson’s research, it may not be surprising that many of the questions posed by the Republican-appointed Justices on the Supreme Court in the Affordable Care Act litigation focused on ideological and policy concerns over the extent to which upholding the individual insurance mandate may be seen as expanding the powers of Congress beyond limit.
For example, in the arguments on Tuesday, March 27 regarding the core issue of constitutionality of the individual insurance mandate, Justice Scalia, who was appointed by a Republican President, engaged in the following questioning of U.S. Attorney General Donald Verrilli:
GENERAL VERRILLI: No, that’s quite different. That’s quite different. The food market, while it shares that trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don’t know before you go in what you need, and it is not a market in which, if you go in and — and seek to obtain a product or service, you will get it even if you can’t pay for it. It doesn’t have -
JUSTICE SCALIA: Is that a principled basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principled basis? I mean, it’s — it’s a basis that explains why the government is doing this, but is it — is it a basis which shows that this is not going beyond what — what the — the system of enumerated powers allows the government to do.
On the other hand, the Justices appointed by Democratic Presidents tended to focus their questions on issues and arguments that would support the constitutionality of the Affordable Care Act. For example, Justice Ginsburg, inquired as follows:
JUSTICE GINSBURG: Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money. And the tangible result of it is — we were told there was one brief that Maryland Hospital Care bills 7 percent more because of these uncompensated costs, that families pay a thousand dollars more than they would if there were no uncompensated costs. I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.
GENERAL VERRILLI: That is — and that is definitely a difference that distinguishes this market and justifies this as a regulation.
And, at another point, Justice Ginsburg appeared to continue her focus on policy concerns that would support the individual insurance mandate:
JUSTICE GINSBURG: Can we go back to –Justice Breyer asked a question, and it kind of interrupted your answer to my question. And tell me if I’m wrong about this, but I thought a major, major point of your argument was that the people who don’t participate in this market are making it much more expensive for the people who do; that is, they will get — a goodly number of them will get services that they can’t afford at the point when they need them, and the result is that everybody else’s premiums get raised. So, you’re not — it’s not your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.
GENERAL VERRILLI: That — that absolutely is a justification for Congress’s action here. That is existing economic activity that Congress is regulating by means of this rule.
However, given the make-up of the Supreme Court, rather than focusing on policy questions by Republican-appointed Justices that appear to disfavor upholding the law or policy questions by Democratic-appointed Justices that appear to favor upholding the law, it may be more important to focus on any questions posed by the Justices that appear to run counter to those expectations.
Composition of the Supreme Court
The Supreme Court is composed of nine Justices, five of whom were appointed by Republican Presidents (Scalia, Thomas, Kennedy, Roberts, and Alito), and four of whom were appointed by Democratic Presidents (Ginsburg, Breyer, Sotomayor, and Kagan).
Given the current make-up of the Court, at least one of the Republican-appointed Justices would have to rule in favor of the Affordable Care Act in order for it to be upheld.
Commentators have pointed out that recent cases raising political issues, such as Citizens United and Bush v. Gore, have exemplified a trend for the Justices to render 5 to 4 decisions, deciding along partisan lines in these matters.
These same commentators argue that another 5 to 4 decision perceived to be rendered merely along partisan lines could further weaken the Supreme Court’s institutional reputation as an unbiased body, and that Justice Roberts previously recognized such a danger in his confirmation hearings before the Senate.
However, the fact remains: given that five of the Court’s Justices were appointed by Republican Presidents, at least one of those five would have to decide counter to the partisan trend noted by commentators in recent cases, in order for the health care law to be upheld.
The questioning during oral arguments may shed some light on which of the five Conservative-appointed Justices may be most likely to find grounds on which to uphold the Constitutionality of the Affordable Care Act.
Some Questions by Justice Kennedy and Chief Justice Roberts May Suggest Openness to Arguments Upholding the Law
Following are some questions, by Justice Kennedy and Chief Justice Roberts, in particular, that so far have received little attention in the press, but may well be significant to the outcome of the case.
Justice Kennedy – a Swing Vote. The following questioning by Justice Kennedy (long viewed as a “swing vote” on the Court) has not received much focus, but does seem to suggest that Justice Kennedy may be willing to entertain reasoning that would support the Constitutionality of the individual insurance mandate in the Affordable Care Act:
Noting that counsel for those challenging the Affordable Care Act have conceded in their briefs and arguments that Congress would have had the power under the Taxing Powers granted to Congress in the Constitution simply to establish a single-payer national health care system, and impose a tax on all Americans to support it, Justice Kennedy said:
“JUSTICE KENNEDY: I’m not sure which way it cuts, if the Congress has alternate means. Let’s assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power. On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes.”
At another point, Justice Kennedy asked Mr. Clement, the attorney for the challengers to the law, the following question, acknowledging that an argument could be made that those who choose not to buy health insurance are nevertheless engaged in commerce by their effect on the health care insurance market, and therefore subject to regulation by Congress under the Commerce Clause of the Constitution:
And, later after an argument by counsel for the challengers to the law that those who have not purchased health insurance are not actually in the market and therefore not in “commerce,” such that Congress should not have power under the Commerce clause to regulate them, Justice Kennedy persisted:
Chief Justice Roberts. Similarly, the following questioning by Chief Justice Roberts has not received much attention, but may indicate his willingness to entertain reasoning supportive of the constitutionality of the individual insurance mandate or at least counter to striking it at this time:
On Monday, during the arguments on whether the Anti-Injunction Act (which prohibits challenges to taxes before they take effect) bars this case because the individual insurance mandate (which is to be enforced by a penalty in the nature of a tax) will not take effect until 2014, Chief Justice Roberts seemed to signal that perhaps he may be open to denying the challenge to the law at this time under the Anti-Injunction Act.
Reacting to arguments by counsel for the challengers to the law, who was attempting to distinguish the individual insurance mandate from a “tax” under another case and arguing that the insurance mandate itself is not a “tax” within the Anti-Injunction Act and therefore that challenge to the mandate is not barred under that Act, Chief Justice Roberts said:
MR. KATSAS: Of taxes, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS: Well, prevent the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense.”
Then, during arguments on Tuesday, Chief Justice Roberts also showed perhaps some interest in Attorney General Verrilli’s arguments that the individual insurance mandate should be upheld as a valid exercise of Congress’ Taxing Power under the Constitution:
GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objectives. But it is in the Internal Revenue Code, it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say -
CHIEF JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.”
The conclusion that Chief Justice Roberts may have been drawing here was not clarified further.
However, in other questions to counsel for the challengers of the law, the Chief Justice also demonstrated understanding of and perhaps some openness to the Government’s arguments in favor of the law under the Commerce Clause of the constitution:
And later, in reaction to argument by counsel for the NFIB, one of the challengers to the health care law, that allowing Congress to require everyone to buy health insurance would also allow Congress to require everyone to buy mortgage insurance:
The Crucial Question
The central and most frequently voiced concern reflected in the Justices questioning seemed to be whether a finding upholding the individual insurance mandate would have the result of setting a precedent which would effectively remove all limits on Congress’ power under the Commerce Clause of the U.S. Constitution. Such a result could potentially run counter to the Tenth Amendment, which reserves to the States all powers not specifically granted to Congress.
As illustrated above, many of the Justices’ questions focused on finding a principle by which to limit a holding in favor of the law in this case, so that it would not have the effect of removing all restrictions on Congress’ power under the Commerce Clause.
This central concern was voiced aptly by Justice Alito in a question to the Government’s lawyer, Solicitor General Verrilli:
Attorney General Verrilli responded,
With respect to the — with respect to the — considering the Commerce Clause alone and not embedded in the comprehensive scheme, our position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the — the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one’s entry into that market and what you will need when you enter that market is uncertain and when — when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.
So those — those are our views as to -those are the principles we are advocating for and it’s, in fact, the conjunction of the two of them here that makes this, we think, a strong case under the Commerce Clause.”
This response, was summarized in the questioning quoted above by Justice Ginsburg, Justice Kennedy and Chief Justice Roberts, and referred to by Justice Breyer, who added other potential limiting principles, in his questions to counsel for the challengers of the law:
And the limiting principles — you’ve heard three. First, the Solicitor General came up with a couple joined, very narrow ones. You’ve seen in Lopez this Court say that we cannot — Congress cannot get into purely local affairs, particularly where they are noncommercial. And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law. That is a principle, though enforced by the legislature. The other two are principles, one written into Lopez and one you just heard.
It seems to me all of those eliminate the broccoli possibility, and none of them eliminates the possibility that we’re trying to take the 40 million people who do have the medical cost, who do affect interstate commerce, and provide a system that you may like or not like. “
The outcome of the Supreme Court’s decision may well turn upon whether any of this reasoning was sufficient to persuade Justice Kennedy to find sufficient limiting principles to uphold the law under the Commerce Clause.
The outcome could also turn upon whether Chief Justice Roberts may be persuaded by this reasoning to uphold the insurance mandate under the Commerce Clause or potentially as an exercise of Congress’ Taxing Power. Or, potentially whether Justice Roberts or others may be persuaded by the arguments referenced earlier to vote with a majority upholding the law, by finding that the Anti-Injunction Act bars a challenge to the law at this time.
The Supreme Court held an internal conference on Friday, March 30, but is not expected to announce its decision before late June, 2012.
You can listen to the audio recordings and read the transcripts of the oral arguments in their entirety at the following locations on the Supreme Court’s official website on the Patient Protection & Affordable Care Act (the “Affordable Care Act”):
- Audio Recording & Written Transcript of Arguments Monday, March 26, 2012 on the Applicability of the Federal Anti-Injunction Act to Bar Challenges to the Individual Insurance Mandate in the Affordable Care Act before it is enforced in 2014: Does the Federal Anti-Injunction Act, which prohibits challenges to a federal “tax” before it is enforced, apply to prevent the federal courts from hearing and deciding these cases challenging the individual insurance mandate (which is to be enforced by a penalty in the nature of a tax) until it is actually enforced, starting in 2014?
- Audio Recording & Written Transcript of Arguments Tuesday, March 27, 2012 on the Constitutionality of the Individual Insurance Mandate in the Affordable Care Act: Was the requirement in the Affordable Care Act that starting in 2014 most individuals purchase health insurance or face a penalty within Congress’ powers to enact under the Commerce Clause or under the Taxing Powers granted to Congress under the U.S. Constitution?
- Audio Recording & Written Transcript of Arguments Wednesday Morning, March 28, 2012 on the Severability Issue: If the individual insurance mandate in the Affordable Care Act were to be stricken down as unconstitutional, can the rest of the law be “severed” from the mandate and stand on its own and remain in effect, and if so, how much of the remaining law can remain in effect?
- Audio Recording & Written Transcript of Arguments Wednesday Afternoon, March 28, 2012 on the Constitutionality of the Medicaid Expansion included in the Affordable Care Act: Did Congress have power under the Spending Clause of the U.S. Constitution to require States to implement the expansion of Medicaid to cover all with incomes up to 133% of the poverty line, as a condition to receiving federal Medicaid funds?
For a detailed discussion of the issues and arguments that were before the Court, see:
- News on Health Care Reform;
- Editorials: What Needs Improvement, With Your Comments;
- Advocacy: Proposals for Reform, With Your Comments;
- Legislation: Pending & Recently Adopted; and
- International Health Care Compare: Information on Health Care & Long-Term Care Solutions in Other Countries.
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