(1) There were many missed opportunities for Solictor General Verrili to alleviate the Justices' concerns that the individual mandate lacked a limiting principle.
One in particular came in the first 15 minutes, when Chief Justice Roberts asked Verrili how requiring health care is any different from requiring everyone to buy a cell phone to mitigate future disasters. After all, the point to health care is that you never know when you'll get sick, just as you don't know when you'll need to call an ambulance.
GENERAL VERRILLI: No, Mr. Chief Justice. think that's different. It's -- We -- I don't think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be able to control what they need when they enter but when they -
CHIEF JUSTICE ROBERTS: It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need. But when you do, and the government provides it.This question appeared to be Justice Roberts offering Verrilli an early opportunity to provide a limiting principle - an opportunity Verrilli failed to take. At the very least, he should have stated that the Court could reserve the right to strike down a mandate that affected a different market, since healthcare is unique. (Unique in that insurance provides the only affordable means of receiving healthcare, and thus everyone is involved in the insurance/healthcare market).
(2) Arguments against the mandate relied heavily on creating a distinction between the healthcare insurance market and healthcare services.
Both Paul Clement and Mike Carvin responded to the Justice's comments that the mandate sought to regulate a market that already existed and everyone is a natural part of by drawing a line between buying insurance and receiving healthcare. It is true that most people have to participate in healthcare at some point in their life, but that doesn't mean that they have to buy insurance. Insurance allows a participant to take a risk based on their individual circumstances and reduce the costs for services they expect to receive. There are plenty of people, usually younger, who decide that the risk is low enough that they don't need insurance and the healthcare law will infringe on this decision.
(3) Justice Kennedy's strange silence is more indicative of his lack of a strong opinion on the mandate's constitutionality than his support for striking it down.
Many commentators are already pointing to the lack of questions asked by Justice Kennedy during the second half of the arguments (when advocates argued against the mandate) to show that he supports ruling the law as unconstitutional. But Justice Kennedy is usually just as vociferous in his questioning when he supports a law as when he is against it. Questions are often used by the justices to draw out arguments they find more compelling to persuade their judicial companions.
It could be that Justice Kennedy simply saw no point in arguing when it was likely the liberal bloc would vote to uphold the law, or that he didn't want to show his hand to the wide and thirsty audience that has made him the focal point of their predictions. The questions he did ask show his hesitance to grant Congress an expansion in the commerce clause, but whether the unique nature of the healthcare market provided a justification for doing so was largely left unanswered.
Which is why I believe Chief Justice Robert's vote will be crucial to the outcome of the case. Justice Kennedy has a reputation for wavering on his vote throughout the opinion drafting process. My guess is that he will side with Roberts in whatever direction that takes him.
(It is fairly clear that Justices Thomas, Alito, and Scalia will vote to strike it down, as Justices Breyer, Sotomayor, Kagan, and Ginsburg will vote to uphold it.)