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Wow: SCOTUS Leaning Toward Throwing Out Obamacare In Its Entirety?

My colleague Kate Hicks -- who has attended the High Court's oral arguments this week -- will file a full report on today's proceedings later on.  In the meantime, some initial reactions indicate that the Supremes may be poised to not only throw out Obamacare's individual mandate, but the entire thing.  Wow.  Snippets the Wall Street Journal's excellent live blog:


Justice Kennedy, again exploring the competency theme, says Mr. Kneedler suggests the court has the expertise to invalidate some parts of the law, but not the expertise to judge whether other parts should remain in place.  The justice says he finds that "odd."

Justice Scalia suggests there has never been another high court case where the justices have struck down the “heart” of a law, but left the rest of it in place.

Chief Justice Roberts suggests that Mr. Kneedler, the government lawyer, has made effectively made the case that if the insurance mandate falls, the guarantee that insurers accept all customers must go, too.  But, the chief says, that doesn’t tell the court what to do with all the many other provisions of the law.

Justice Alito echoes those concerns, saying other provisions in the law, in addition to the guaranteed-coverage requirement, could lead to higher costs for insurers.

CNN's Jeffrey Toobin says Justice Kennedy led this aggressive questioning, indicating that Kennedy has made up his mind that at least the individual mandate is unconstitutional.  Via CNN tweets:

Toobin: "The leader of the questioning was Kennedy; it certainly seemed likely he made up his mind the mandate was unconstitutional."

CNN JUST IN: Jeffrey Toobin: "this entire law is in trouble..." the individual mandate appears "doomed"..."seemed a foregone conclusion."


Toobin reiterated his "train wreck" imagery, adding that today could have also been a "plane wreck" for President Obama.  Again, via WSJ, here are some of the Lefty justices desperately trying to salvage Obamacare's shell:

Justice Kennedy has asked broader questions about the precise test that he thinks should be applied in this case to determine what Congress intended. He's been met with a flurry of responses from Justice Sotomayor, Justice Elena Kagan, and Justice Stephen Breyer.

Justice Ruth Bader Ginsburg has sought to argue that the most legally conservative position is to uphold the law. If the justices have to choose between "a wrecking operation and a salvage job, a more conservative approach would be a salvage job," she said.

Justice Sonia Sotomayor was first to interrupt the challengers' lawyer Paul Clement, who is arguing that the whole law should be invalidated, shortly after he began making his remarks. "Why shouldn't we let Congress" decide what to do, she asked him. "What's wrong with leaving it in the hands of people" who should be taking this decision, "not us?" she continued.

Justice Breyer has been especially aggressive in challenging Mr. Clement to say what he proposes the justices actually do to resolve the fate of the law, suggesting that his options include appointing a special master or going back to the district courts.


NBC's veteran court-watcher, Pete Williams, appears to agree with Toobin's assessment of the state of play:

Pete Williams from NBC said [he] thinks 5 judges will strike down entire law and send whole issue back to Congress.

This could be monumental.  The Medicaid expansion argument occurs later today, then oral arguments on the case will conclude.

UPDATE - Is the White House preparing an all-out assault on the Supreme Court's legitimacy if they lose this case?

UPDATE II - The well-regarded but pro-Obamacare SCOTUS Blog thinks this morning's developments might actually help preserve the law:

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.  A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself.


UPDATE III - Here's Toobin's CNN hit.  Again, this is a guy who expected legal challenges to Obamacare wouldn't go anywhere in the first place:

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