Reporter’s Notebook: Obamacare’s second day at the court features brilliant advocacy, cautious optimism

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Ilya Shapiro
Senior Fellow in Constitutional Studies, Cato Institute
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      Ilya Shapiro

      Ilya Shapiro is a senior fellow in constitutional studies at the <a href="http://www.cato.org/">Cato Institute</a> and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was Special Assistant/Advisor to the Multi-National Force-Iraq on rule of law issues and practiced international, political, commercial, and antitrust litigation at Patton Boggs LLP and Cleary Gottlieb LLP.

      Shapiro has contributed to a variety of academic, popular, and professional publications, including the L.A. Times, Washington Times, Weekly Standard, Roll Call, National Review Online, and from 2004 to 2007 wrote the "Dispatches from Purple America" column for TCS Daily.com. He also regularly provides commentary on a host of legal and political issues for various TV and radio outlets, including Fox News, CBS, WGN, Voice of America, and American Public Media's "Marketplace."

      He is also an adjunct professor at The George Washington University Law School and lectures regularly on behalf of the Federalist Society, The Fund for American Studies, and other educational and professional groups. Before entering private practice, Shapiro clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit, while living in Mississippi and traveling around the Deep South. He holds an A.B. from Princeton University, an M.Sc. from the London School of Economics, and a J.D. from the University of Chicago Law School (where he became a Tony Patiño Fellow). Shapiro is a native speaker of English and Russian, is fluent in Spanish and French, and is proficient in Italian and Portuguese.

Tuesday’s Supreme Court oral arguments, which focused on the individual health insurance mandate, began with pomp and ended with circumstantial evidence that the individual mandate is in constitutional jeopardy.

I won’t recap every nuance of the argument, but here’s a flavor of it and why I left the courtroom cautiously optimistic.

Even getting into the courtroom was a much harder ticket than it was the first day of arguments — at least for the savvy members of the Supreme Court bar, for whom there’s a separate line (which I have been using, thanks to the generous line-standing of Cato and Daily Caller interns).

Once in there, the room quickly filled with senators — I noted a quorum of the judiciary committee — congressmen, public officials (including Health & Human Services Secretary Kathleen Sebelius) and assorted other legal luminaries.

It was a veritable Washington who’s who. The politicians preened for the press, the press craned their necks to note the attendees for their coverage, and we bar members, even those of us who frequent the court, took in the spectacle. Something was different today: To paraphrase Joe Biden, this case was a big deal, and everyone knew it.

Solicitor General Donald Verrilli did not start well, enduring a nervous, awkward opening and then a barrage of questions picking apart the government’s position that it could require people to buy health insurance because everyone is already in the health care market, and because uncompensated care shifts costs onto taxpayers:

JUSTICE SCALIA: Why aren’t those problems that the Federal Government can address directly?

JUSTICE KENNEDY: Can you create commerce in order to regulate it?

CHIEF JUSTICE ROBERTS: So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?

JUSTICE ALITO: Do you think there is a market for burial services? … 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?

By this point the government’s head appellate advocate was on his heels, dodging increasingly skeptical queries, until Justice Kennedy delivered what in poker would be seen as the key “tell”:

JUSTICE KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Although you can’t hear it on the audio recording, the audience gasped.

Kennedy was supposed to be the swing vote — particularly given the criticism from Roberts, Scalia, and Alito — and here he was putting the burden on the government to describe the justification for a sweeping new power.

Moreover, Justice Scalia — whom many thought was in play in light of his concurring opinion in Raich v. Gonzalez, the 2005 medicinal marijuana case ratifying an expansive use of federal power under the Necessary and Proper Clause — was now firmly off the table. Among other lines of questioning, it was Scalia who raised the now-clichéd broccoli mandate and that, with respect to any law executing an enumerated power, “in addition to being necessary, it has to be proper.”

I watched Scalia closely throughout Verrilli’s argument: The constant scowling, grimacing, and just plain astonishment was striking.