On opening day in the health care cases, the Supreme Court justices made it clear that they would not let common sense get in the way of making constitutional history, tells The Huff Post.
On Monday the courtroom was packed to capacity — some members of the public had waited in line since Friday — and the justices seemed energized, talking over each other more than usual.
The key point of the Affordable Care Act is the mandate that the majority of people buy health insurance by 2014 or pay a tax penalty.
According to Reuters, the challengers, including 26 states and a small-business trade group, contend Congress exceeded its authority to regulate commerce with that so-called individual mandate.
The challengers clam that if the government can force people to enter the insurance market, it would have latitude to force people to engage in other behavior, like to buy American-made cars.
Nobody in the Supreme Court wanted to make this simple, delaying argument, seeking instead an election-year constitutional clash over a sitting president’s signature legislative achievement.
The Obama administration argues that virtually everyone will need medical care and that those who opt not to buy insurance put a disproportionate burden on the system. It has defended the law as a response to a national crisis.
Outside the court demonstrators were standing with signs. At the same time, Rick Santorum, a candidate for the Republican presidential nomination, made an appearance in front of the courthouse to highlight his opposition to the law — Mr. Obama’s signature legislative accomplishment — and to note that another Republican candidate, Mitt Romney, had signed a state law with similar features when he was the governor of Massachusetts.
The Supreme Court is literally divided on ideological and political grounds. Five conservative Republican-appointed justices are often in the majority: Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.
And four liberal Democratic appointees are Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
On Monday morning, the justices seemed to lawyer the Anti-Injunction Act to death.
The justices’ questions focused on how to wiggle out of the law’s flat ban on tax-restraining lawsuits and how to avoid the conclusion that the mandate’s penalty is, in fact, a tax.
“This case presents issues of great moment,” said Solicitor General Donald B. Verrilli Jr., “and the Anti-Injunction Act does not bar the court’s consideration of those issues.”
Justice Ruth Bader Ginsburg confronted the Anti-Injunction Act’s telling that “no suit … shall be maintained” language with that of a sister statute that expressly bans “courts of the United States” from delaying certain proceedings.
This contrast, she contended, makes the Anti-Injunction Act “suitor-directed in contrast to court-directed.” Never mind the rest of the statute, which reads, “in any court by any person.”
All four liberals are likely, based on their past decisions and statements, to vote to uphold the law.
Among the justices most likely to become swing votes in the dispute are Roberts, a 2005 appointee of President George W. Bush who has often deferred to Congress in rulings and has signaled an interest in avoiding a deeply divided ruling.
Another conservative justice who could defy political-based assumptions is Anthony Kennedy, a 1988 appointee of President Ronald Reagan.
On Tuesday, the court will turn to the central question in the case, the constitutionality of the law’s requirement that most Americans obtain insurance or pay a penalty.