Worth a read — Dahlia Lithwick’s write-up on yesterday’s SC arguments:

slate.com

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Look carefully at what Justice Kennedy just said: Don’t want to impose new risks on the insurance companies. Check. Striking down all of the 2,700 page statute—much of which regulates breastfeeding, Native American health, black lung treatment, and other things unrelated to the individual mandate—that’s the new judicial restraint.

Again, like the day before, not much law happens this morning. It’s all mainly a sort of free-form ramble by the justices over the complexities of congressional lawmaking.

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The afternoon offers yet another opportunity for the court to forgo reading text and citing cases—the things they are meant to be good at—so they can have a good old-fashioned, foot-stomping policy debate about Bad Stuff the Federal Government Might Some Day Do. The theory that the states get such a great deal from the Medicaid expansion that they are “coerced” into participating was always deemed far-fetched. So much so that no lower court accepted the argument. But that didn’t stop the justices from having it briefed and argued, because, well, if the individual mandate can be struck down on the prospect that Congress may someday pass a broccoli mandate, the Medicaid expansion should surely be struck down on the likelihood that the secretary of Health and Human Services is like a gun-waving hostage taker forcing you to choose between “your money and your life.”

Justice Kagan can’t seem to understand why the case is even before her.

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At some point, Kagan stops smiling at the silliness of the coercion talk and begins to look a little ill. Breyer also looks grimmer and grimmer as the afternoon wears on. Millions of people won’t be added to the welfare rolls because it would hurt the states’ dignity.

Who knows whether there are five votes here to strike the Medicaid expansion? There’s chatter along the way of the merits of the stimulus bill as well. One starts to get the sense that if HIPAA was on the table it could go down. The distinctive vibe as the three-day marathon closes is that the court has become a kind of free-floating panel from Dancing With the Stars: “Eh. That IX was a little floppy in the arms, no?”