A clearly divided U.S. Supreme Court on Tuesday took up the centerpiece of President Obama’s health care law: its requirement that by 2014 individuals have insurance coverage or face a penalty.
In contrast to Monday’s dense and technical arguments, Tuesday’s session was filled with sharp rhetorical volleys and clever analogies. Here are some of the more telling exchanges between the lawyers and the high court justices.
The Cast: Arguing in favor of the 2010 law was Solicitor General Donald Verrilli Jr.; against it were Paul Clement, the former solicitor general, and Washington lawyer Michael Carvin.
Most Intense Barrage: Verrilli came under fire early and often from the conservative justices, especially Antonin Scalia, who quizzed Verrilli on young people buying insurance.
Scalia: We’re not stupid. They’re going to buy insurance later. They’re young and — and need the money now. When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance, like the rest of us.
Verrilli: … they’re going to make that calculation that they won’t get it until they’re sick and they need it, and so the pool of people in the insurance market gets smaller and smaller. The rates you have to charge to cover them get higher and higher. It helps fewer and fewer — insurance covers fewer and fewer people until the system ends.
Best Judicial Assist: As Verrilli seemed to struggle with his argument, Justice Ruth Bader Ginsburg offered help.
Ginsburg: A major, major point of your argument was that the people who don’t participate in this market are making it much more expensive for the people who do; that is … a good number of them will get services that they can’t afford at the point where they need them, and the result is that everybody else’s premiums get raised. So it’s not your free choice just to do something for yourself. What you do is going to affect others, affect them in — in a major way.
Verrilli: That absolutely is a justification for Congress’ action here.
Most Enigmatic: Chief Justice John Roberts and Justice Anthony Kennedy — widely considered the mostly likely fifth vote in favor of the mandate — were harder to read.
Kennedy: In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.
Grimmest Hypothetical: Justice Samuel Alito noted that we’re all going to die, so why not make everyone buy burial insurance?
Alito: Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, “You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else.” Isn’t that a very artificial way of talking about what somebody is doing?
Best Food Metaphor: There was mention of bread and bologna, but broccoli was invoked nine times, most memorably by Scalia, who suggested that if the government could make people buy insurance, it could make people buy healthful vegetables too.
Scalia: Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
Verrilli: That’s quite different. The food market, while it shares that trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary.