Wednesday, March 28, 2012

Affordable Care Act - Oral Arguments Day #2

Well, folks, Tuesday's oral arguments certainly did not disappoint.  I have to admit that my biggest take-away from the arguments has been an absolute deep respect for Justice Sotomayor.  What an admirable addition to the SCOTUS bench!  Her questions are erudite.  She goes straight to the heart of the issue.  She's polite, respectful of other people, their ideas and opinions, yet definite in her own opinions and ideas.  She seems the most prepared of any of the Justices and I believe she has asked the most questions although Justice Kennedy was very engaged.

Did we gather any inklings from Tuesday's arguments and questions to guess what the ruling will be?  I don't think so.  For my money, the Justices asked tough questions of both sides of the issue.  And I'm not sure that the kind of questions asked translate in any way to what the final decision will be.  I'm a complete outsider on these proceedings but I can't help but feel that the real decision-making process is going to take place between the Justices as they try to sway each other toward adopting a majority opinion.  Maybe something one side or the other said may bolster a Justice's opinion but there were no surprises from counsel on either side.  (Although I have to agree with other commentators that the Administration's advocate could have been more...more...I don't know...maybe a greater stage presence would have helped?) Anyway, I don't think that matters to the Justices.  We're really only talking about two Justices that are possibly in the swing seat.  Roberts and Kennedy.  Do not believe that yesterday's arguments swayed anyone into a totally new position. 

Today, C-SPAN starts playing the oral arguments at 12:30PM.  Today the discussion centers around what happens to the rest of the law if the mandate is overturned.  Can the mandate or the mandate/penalty be severed from the rest of the law so that the remainder of the Act stays in place?  The other big question presented today centers around the expansion of Medicaid.  Federalism may hang in the balance.  Stay tuned for the fireworks.

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