Thursday, March 29, 2012

Day Three: Baby, Bathwater, Etc.

Yesterday was the final day of arguments for the healthcare law in front of the Supreme Court. Now it moves to their conferences and writing the opinion, and they will render their opinion by the end of June. That won’t stop everyone else who paid attention from rendering their opinion on the fate of the law. Dahlia Lithwick at Slate is not optimistic about its survival.

It’s not a good day for the Affordable Care Act. This morning’s argument requires the justices to start from the assumption that the court will strike down the individual mandate (the issue argued exhaustively yesterday) and asks them to pick over the carcass, to determine what, if anything, survives. There is a strong legal presumption that the court should save (or sever) the constitutional bits of a bill, even if it strikes down other parts. But as the day wears on and the argument winds down, this project of hacking and slicing seems more and more impossible—and it has depressed and terrified virtually everyone.


Could the five conservative justices strike down the entire health care law, and take us into what Kagan described this morning as a “revolution”? They could. Will they? I honestly have no idea anymore. As silent retreats go, this one was a lot less enlightening than I’d hoped.

To quote the Chief Justice, “The case is submitted.” Let the guessing games begin.