Justices Split in Questions on Insurance Requirement
With the fate of President Obama’s health care law hanging in the balance at the Supreme Court on Tuesday, a lawyer for the administration faced a barrage of skeptical questions from four of the court’s more conservative justices.
“Can you create commerce in order to regulate it?” Justice Anthony M. Kennedy asked the lawyer, Solicitor General Donald B. Verrilli Jr., only minutes into the argument.
Justice Antonin Scalia soon joined in. “May failure to purchase something subject me to regulation?” he asked.
Chief Justice John G. Roberts Jr. asked if the government could compel the purchase of cellphones. Justice Samuel A. Alito Jr. asked about forcing people to buy burial insurance.
The conventional view is that the administration will need one of those four votes to win the case, and it was not clear on Tuesday that it had captured one.
The court’s four more liberal members - Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan - indicated that they supported the law, as expected. Justice Clarence Thomas, who asked no questions, is thought likely to vote to strike down the law.
Everything about the argument was outsized. It was, at two hours, twice the usual length. The questioning was, even by the standards of the garrulous current court, unusually intense and pointed. And the atmosphere in the courtroom, which is generally subdued, was electric.
The legal question for the justices was whether Congress had exceeded its constitutional authority in requiring most Americans to obtain insurance or pay a penalty. The practical question was whether Mr. Obama’s signature domestic achievement would survive.
The law is the most ambitious piece of social legislation in generations. In attempting to deliver health care to tens of millions of Americans without insurance, it relied on a controversial mechanism at the center of Tuesday’s arguments, the individual mandate.
Justice Ginsburg said the mandate was a response to the fact that uninsured people receive free health care that ends up being paid for by others. “They are making the rest of us pay,” she said.
Justice Sotomayor said that Americans would not stand for a system in which children in danger of dying were turned away from emergency rooms.
But Justice Kennedy said the requirement to obtain insurance was unprecedented, giving rise to “a heavy burden of justification.”