The main theme of today's oral arguments, considering whether or not the rest of the Affordable Care Act can stand if the Court finds that the individual mandate is unconstitutional, boiled down to what constitutes judicial restraint in this context. What is the most limited yet effective solution the Court can adopt?

Advocates today offered three potential outcomes for the Court to consider if the individual mandate fell: (1) Striking down the entire law to allow Congress to work from scratch, (2) Expunging the community rating and guaranteed coverage requirements (those obligating insurance companies to cover everyone regardless of preexisting conditions), but allowing the seemingly-unrelated aspects of the law to continue, or (3) Removing only the individual mandate so that Congress can determine and fix any problems that arise from the remaining provisions.

Normally judicial restraint is shown by the Court deferring as much as possible to elected officials (i.e. not striking down laws), which would imply that the opposite (occasionally referred to as judicial activism) is for the Court to declare more laws unconstitutional. Today the Justices wondered if stepping into the muddled territory of which provisions would effect each other and which ones could stand alone (and as Congress intended them to stand) would be an unwelcome intrusion, even if it meant more of the law would survive.

Justice Sotomayor argued that leveling any provisions beyond just those that the Court deemed unconstitutional would be an undemocratic, intrusive step outside the Court's traditional role.

Justice Sotomayor: What's wrong with leaving it to -- in the hands of the people who should be fixing this, not us?...Are you suggesting that we should take on more power to the Court?...Unless Congress tells us directly, it's not severable, we shouldn't sever. We should let them fix their problems.

Justice Scalia, on the other hand, indicated he supported a complete upending of the law to avoid any unnecessary complications that might occur by salvaging bits and pieces.

Justice Scalia: So you're just put to the choice of, I guess, bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I'm sure. Do you really think that that is somehow showing deference to Congress and -- and respecting the democratic process? It seems to me it's a gross distortion of it.

 Justice Kennedy, who is presumed by many to have the final say in the outcome of this case, appeared to side with Justice Scalia.

Justice Kennedy: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike -than striking the whole. I just don't accept the premise.

But the lawyers came well prepared for these responses.

Paul Clement argued for the petitioner that each of the provisions relied on one another so that if the individual mandate fell, the Court's investigation would find that the periphery clauses would have to as well. The mandate is connected to the exchanges, which is connected to the tax credits, which is connected to the employer mandates and revenue offsets, and so on and so forth like dominoes.

H. Bartow Farr, appointed by the Court to argue that the rest of the law could stand without the mandate, argued that the mandate was just one of many tools that Congress relied on to fund the monetary fallout insurance companies would absorb. If the Court found the mandate unconstitutional, Congress would simply fill in the gap with a different mechanism.

By the end of the argument it appeared that, as expected, the liberal justices wanted as much of the act as possible to remain, while the more conservative justices were content with wiping the slate clean. Only Justice Roberts appeared willing to allow some of the periphery provisions to remain.

A few initial observations from oral arguments today:

(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.)

After waking up once again to an abrupt 3:00am shower (thank you Supreme Court sprinklers - what would this experience be without you?), I took another head count and our line had grown to 80 participants over night. About half of the people I spoke with expressed interest in Tuesday's oral argument, but many others had been worn out by the cold night and acquiesced to hearing Monday's case.

At 7:30 the police instructed the line that 60 people would be admitted, and no one would be allowed a second viewing. The police walked down the line, handing out small slips of paper that held a viewer's official number in the line to the Courtroom. In half an hour the line separated, leaving approximately 40 people still standing on the sidewalk waiting for Tuesday and 12 who were unable to receive a seat. The latter were happily escorted inside the building when the police returned with more seats for the general public.

He felt a lot differently when the initial cut-off said no one after 60 would get in.

No one who wanted to see the Court's Monday arguments was left out. Even those who had arrived the morning of were able to claim the additional seats allocated to the public. From the point of view of someone who was expecting a line of epic proportions, I was a little disappointed. It's possible that Tuesday will see a significant turn out for the debate over the individual mandate, but as of 9:00 tonight it still looks like everyone in line will be able to get a seat. Not that this is a bad thing, but it gives me a different perspective on sleeping on the sidewalk for four days.

Protests continued throughout the day, including several tea party members and ACA supporters. Rick Santorum appeared briefly for a comment, but other than the emphatic chanting of pro-healthcare slogans, the event was uneventful.

As for the Anti-Injunction Act arguments that were heard today, the general consensus from viewers is that it is extremely unlikely the Court will rule that that the healthcare requirement is a tax, not a penalty, and that case should be postponed until after the law goes into effect.

Sunday evening has passed in a flash. After the protest ended around 4:00 the sun broke through the cloud cover for some much welcomed sunshine.  Kathie and I decided to skip the rest of the religious protest to make a trip to Starbucks and charge our batteries (technological and physical).  

Our line has quadrupled in size, rounding the corner on East Capitol. A count at 8:00 put the number at approximately 47.  If the Court continues its policy as stated on Friday - 60 chairs for the general public - everyone in line will get a seat. If they want one. 

The line now goes down the street and around the corner.

The crowd is buzzing with strategies for tomorrow morning. No one knows for sure how the Supreme Court police will handle the difference between those waiting for Monday and those willing to stick through the extra night for Tuesday and Wednesday. If you go inside tomorrow morning, do you automatically sacrifice your seat for future arguments? 

For a standard oral argument, watchers know which day they want to attend because any other day would be an entirely unrelated case. The healthcare arguments, however, are split over three days, with different topics marked for discussion on separate days. Very few people in line (really no one) are interested when I ask them about the Anti-Injunction Act that will be heard on Monday. But it will be the historic first day of oral arguments, and that has a certain attractive symbolism. 

Tuesday will be the constitutionality of the individual mandate, and most people perk up for that. Then they pause to consider the extra night sleeping on the DC streets. Who goes in tomorrow and who will wait it out is still anyone's guess, and probably will be until 7 AM tomorrow (or now that it's after midnight, today).

If there was ever a night to skip, apparently last night was it. A heavy rain unleashed itself on the crowd at 2:00am, waking everyone who had managed to fall asleep sitting upright in their chairs.

The paid line standers had been betting against the rain, and were fully exposed when it started coming down. To make matters worse, the company that hired them never delivered their promised rain supplies, and most had few ways to protect themselves.

And at 4:00am the coup de grace - just as the rain had stopped the automatic sprinklers shot to life and drenched everyone from behind. Even one of the security guards was caught standing in the grass on top of a sprinkler head. When I arrived in the morning, however, everyone somehow appeared to be in good spirits. Dana was happy to be relieved of his duty, but turned down an offer for a hot breakfast.

By 10:00 the reporters began filtering in. Those in line who had declined to share their stories and viewpoints were now more willing, but the paid line standers were reminded of their explicit instructions not to speak with reporters (occasionally even by the physical presence of their supervisors).

The Christian Defense Coalition held a rally in front of the Court that consisted of a call to prayer and arranging flowers in a line around the Supreme Court while participants listened to religious anti-ACA rhetoric. It was a respectful protest, and the crowd was careful to stay on public property.

As the uncomfortable conditions wore our patience thinner, and the air continued to polarize, the line began debating the act. Many of the paid line standers have better stories than those of us who are there to personally attend: a 40-year-old man who has never had health insurance in his life and two young men from Africa and the Middle East who have strong opinions about the availability of healthcare in their home countries compared to that in the U.S. (hint: we don't win). Others refer to the law as a "driving the nation off a financial cliff" or a moral transgression. But despite the agitation, we have all made an effort to stay friendly.

The line is continuing to grow as we sneak closer to Monday. A head count at 2:00 put the number at 25.

Saturday night has been quiet. The rain stopped around mid-afternoon, but everything and everyone is wet and cold.  One paid line stander decided he no longer cared to face the world and hid under his tarp. The rest of us made light conversation until the cold seeped too close to our bones and we retreated to our personal corners.

Dana stopped by to let me go home and shower, and he'll be keeping my seat for the next few hours as I catch some much needed shuteye. The line has only grown by one person (our second Carol), but she disappeared for several hours as she explored the Methodist church. We saw her briefly again as she helped the group arrange a pizza delivery, but she didn't have a sleeping bag, umbrella, or even so much as a change of clothes so I hope she decided to skip the line for the night.

Several passersby expressed interest in joining our lineup, but after hearing the weather forecast tonight (more of the same dreary rain) they felt Sunday morning would be best. I have to agree.

We arrived at 7:00 last night and already we could tell we were late. The Supreme Court announced that a line had started forming at 9:30am Friday morning, and by evening there were eleven of us lounging on the sidewalk. Dana and I came well-prepared: two folding chairs, snacks (with plenty of coffee), a small 6-cell netbook for videos, and a USB drive stocked with Dr. Who episodes.

We quickly realized, however, that it was going to get cold fast. Dana took orders for a supply run to Target for me and those in line, and came back armed with umbrellas and sleeping bags for everyone in need. We also realized the laptop was completely extraneous - everyone is so friendly we've barely cracked it open.

Many of those in line are paid line standers, holding spots for parties interested in seeing the arguments and not enduring three days of DC rain. Those who were willing to stick it out quickly bonded together: Tom, a left-wing independent journalist travelling from New York; Kathy, a trial lawyer from Atlanta with two chronically ill children; and Carol, a tourist from California exploring the city and struck with the inspiration to join us at 3:00 this morning.

The line standers are working in shifts - usually about 6-8 hours. I've yet to see someone return after their replacement takes over. The rest of us rolled out our sleeping bags and hunkered down for what turned out to be a chilly evening. Midnight sandblasting at the capitol building kept us awake, but most of us were able to sleep until it started sprinkling around 5:30. (I came with the misconception that the Supreme Court doesn't allow sleeping because it looks too much like camping, which is illegal to do on the public sidewalks in DC, but the police were perfectly fine as long as we didn't obstruct the street).

Internet is scarce, as it is only available at the Starbucks five blocks away. I will continue to report as the night continues.