The two days of oral argument into President Obama's health care reform law have been notable for their lack of surprises.
On the first day, the Court considered whether the Anti-Injunction Act barred the lawsuits challenging the individual mandate. Although this was always considered the sleeper issue of the case, there are few stronger trends in the Supreme Court these days than judicial assertiveness. A Court that could decide a disputed presidential election in Bush v. Gore; unleash Citizens United; and repeatedly wade into presidential war powers should have little hesitancy reaching out to decide the fate of the Affordable Care Act. So when the Justices breezily ignored the plain language of the AIA, it was predictable. The Court wants to decide all of the major issues in American politics, including this.
On day two, the Court looked at the individual mandate. One thing that always seemed beyond the pale to me was the idea that, when it came to the mandate, the votes of Justice Scalia and Chief Justice Roberts were in play. Just because Scalia voted to uphold the federal drug laws in Gonzalez v. Raich should never have fooled anyone into thinking he'd vote to uphold the mandate, and his aggressive questioning of the government on the mandate indicated he's likely to vote to strike it down. The same can be said for Roberts, who for seven years now has been confounding the expectations of those who believed he'd really push for unanimous, narrow rulings that avoided constitutional questions, as he promised in his confirmation hearings. His voting record is strongly conservative and his desire to protect the institutional legitimacy of the Court is remarkable mainly for its lack of manifestation.
As usual with the closely divided Court, the deciding vote belongs to Justice Kennedy. His skepticism towards the government's argument is also not a surprise. He's proven to be the Justice most likely to side with the individual against the government, regardless of the politics. That's why he pleases liberals on gay rights and pleases conservatives on affirmative action. One thing Kennedy said at the oral argument was also typical: despite the longstanding Commerce Clause standard of rational basis review, which presumes the constitutionality of congressional regulation, Kennedy said the government carried a heavy burden justifying this law. Here, Kennedy gave voice to his own longstanding pattern of defying expectations when applying the rational basis test. He applied a seemingly strong version in Romer v. Evans and, arguably, Lawrence v. Texas. To Kennedy, rational basis is not nearly as deferential as it is usually thought to be -- and if he writes an opinion striking down the mandate under rationality review, no one should be surprised.