After Supreme Court’s healthcare hearings, experts rate arguments


Whether the U.S. Supreme Court will uphold President Obama’s landmark healthcare overhaul or scrap at least the most controversial part — the requirement that most Americans have health insurance — won’t be known until probably this summer, when the justices are expected to rule.

But after three days of oral arguments concluded this week, four constitutional law experts weighed in on the strengths and weaknesses of the cases made by the administration’s top lawyers, Solicitor Gen. Donald Verrilli Jr. and his deputy, Edwin Kneedler, and Paul D. Clement, solicitor general in the George W. Bush administration, who represents the 26 states challenging the 2010 Patient Protection and Affordable Care Act.


Adam Winkler, UCLA constitutional law professor

“To no one’s surprise, Paul Clement has been extremely persuasive on the part of the challengers. He is known to be one of the foremost Supreme Court advocates in the nation.... He’s famous for being able to make arguments without notes, without stutters. The arguments this week showed his skill again.

“Verrilli did an OK job but I’m sure many supporters of President Obama’s healthcare reform were a little disappointed with his advocacy. He had very good answers to key questions but often phrased them inartfully. He also failed to remind the court repeatedly of the deference the court owes Congress” in its lawmaking role.

How is the court likely to rule?

“I think it’s too close to call, but I wouldn’t be surprised if the Supreme Court struck down the individual mandate. [Striking down the entire law] is less likely as that would be a clearer case of aggressive judicial activism. The law has thousands of different provisions, many of which have nothing to do with the individual mandate.”


Henry T. Greely, Stanford professor of health law and policy

“It’s hard from reading a naked transcript [of the untelevised hearings], but on the transcript alone I thought Clement looked very impressive, very smooth, very present, never at a loss for an answer.

“Both Verrilli and Kneedler, they didn’t look as good. They were stumbling for words, having a hard time coming up with crisp answers. It looked to me like Clement did the better job of oral advocacy.

“But oral argument is a performance. It’s a performance that is vaguely related to the outcome of the case. It’s one window into one moment in a process.”

How will the justices rule?

“Right now I’d say it looks like there are clearly four justices in favor, three opposed and [Justice Anthony M.] Kennedy somewhere in between, and Chief Justice [John G.] Roberts with leeway to go either way.... I think on the individual mandate the chances are better that it will survive than go down. I would be surprised if Justice Kennedy wanted one of his most memorable acts to be this. Is this how he wants to be remembered? Look at his record on gay issues. I think he cares about his legacy.”


Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute, a libertarian think tank

“Paul Clement has been brilliant, as expected, on all of the issues. The government was much weaker than I thought they would be, which surprised me.... The stances the government took and certain responses made by Verrilli and Kneedler could have been done better.

“But I think it would be going much too far to say that even if the government did a terrible job, and I’m not saying that they did, that that necessarily lost them the case.... Perhaps the justices were predisposed to one side or the other and those predispositions were just confirmed.”

How will the justices rule?

“I think they will unanimously get past the anti-injunction issue [that bars legal challenge of taxes before they are paid]. Then I agree with the conventional wisdom that Kennedy is the swing vote on the individual mandate and I think it’s more likely than not that they will vote to strike it down. On severability [whether the rest of the law survives without the mandate], that is less easy to predict.”


Neal Katyal, Georgetown law professor and former acting solicitor general, May 2010-June 2011

“These are extremely difficult and complex arguments and I think the advocates, both from the government and the states and the friends of the court, all did a really terrific job in articulating the issues.

“At the end of the day, it is a very hard thing to ask the federal court to strike down any act of Congress, particularly one like this that has the eyes of so many Americans on it. One thing here is that a lot of the concerns are policy concerns against the act and not constitutional concerns. In circumstances like this, in which there is no clear constitutional law that blocks the government from doing what it is doing, it is going to be very difficult to strike it down.”

Are the justices likely to be persuaded by effective argument to rule one way or the other?

“Oral argument does matter. But it matters in the sense that you can lose a case in conceding something or making a mistake, but it’s hard to win a case at oral argument.”

Which side did better and how will the justices rule?

As Verrilli’s predecessor and a former member of the administration, Katyal declined to offer an opinion.