Initial impressions of Day 2
posted by Nicole Huberfeld
Many thanks to Gerard for organizing our conversation about the Big Three Days. Just a few thoughts for Day 2, in no particular order. First, General Verrilli must have been wishing that Justice Sotomayor were the SG when she was articulating the United States’ three big arguments (“threads”, in her language). The U.S. has been disorganized in its defense of the private insurance aspects of this law, and it showed in today’s arguments. (By the way, how about her shout out to the 99%?)
Second, the Court often appears unnerved by the layers of complexity inherent in healthcare matters, and today was not much different. Justice Scalia in particular seemed determined not to understand how health insurance or health insurance markets work. And, General Verrilli could have done a much better job explaining risk pools; Justice Ginsburg had to jump in to help him. The repeated questions about the temporal argument being made by the states – that purchase at the point of needing medical care would be acceptable - showed a complete lack of understanding about how insurance works. No insurance can be purchased in the moment that insurance coverage is needed; if insurance could be purchased at the moment of the cancer treatment, or the auto accident, or the home fire, then insurance risk pools could not work – they would be all claims and no pool.
Third, I was surprised by Justice Kennedy’s initial deep skepticism, though it did seem like his stance softened by the time Mr. Carvin was at the podium. Though Kennedy seemed to be articulating one of his favorite themes (limited government undergirds liberty) the “assume for the moment that this is unprecedented” comment seemed unusually hostile. I don’t think it’s all in Justice Kennedy’s hands though, because although Chief Justice Roberts was also initially hostile to the U.S. position, he too seemed to change his tune when questioning Carvin. It almost sounded like he was annoyed with the bombastic style Carvin employed. Of course, this does not necessarily mean a change in heart on the constitutionality of the law itself, but I don’t think the Chief’s vote is set in stone (after all, remember his vote with the majority in Comstock).
I continue to find the states’ role in the individual mandate arguments to be questionable. The provision is not about the federal-state relationship, even if one considers it a bypass of state police power to regulate individuals in the health insurance market directly. The real federalism issue lies in the Medicaid question before the Court tomorrow…