Health Care Reform in the Supreme Court: Day 2 Audio and Transcript


Court sketch by William J. Hennessy Jr.

On day two of arguments before the Supreme Court about the health care reform law, the justices tackled the central question of whether it’s constitutional to require most Americans to either buy health insurance or pay a fine.

Questions were tough — as expected — from the Court’s four conservative justices, but many took note when swing vote Justice Anthony Kennedy said that the mandate “changes the relationship of the government to the individual in a fundamental way.” (See the full transcript and listen to the audio below.)

NewsHour Supreme Court analyst Marcia Coyle watched the action in a packed courtroom that included a few U.S. senators, Health and Human Services Secretary Kathleen Sebelius and several other members of the Obama administration.

Find Coyle’s initial thoughts on Tuesday’s arguments below. And of course, tune in to the PBS NewsHour’s Tuesday broadcast for her full recap and analysis.

Coyle: “The arguments were extremely fast-paced, with the justices posing lots of hypothetical questions. The initial reaction is that the ultimate decision about the constitutionality of this requirement may be a lot closer than the supporters of the law originally thought. Justices on the conservative side — Chief Justice Roberts and justices Alito and Scalia, questioned Solicitor General Verrilli, who is representing the government, extremely aggressively. If they uphold this mandate, they asked him, will there be any limits on Congress’ power to compel individuals to do certain activities?

“On the more liberal side of the bench, justices Kagan, Sotomayor, Ginsburg and Breyer questioned Paul Clement and Michael Carvin, who represented the challengers. They questioned why this health insurance mandate is any different than other government regulations. Justice Ginsburg noted that she thought the mandate was similar to the Social Security Act in the ’30s, right after Congress enacted that program. She said Social Security operates similarly to this law, to have young people in particular subsidizing others — retirees, in that case — with the ultimate goal that they will be able to retire themselves someday and enjoy those benefits.

“I think Justice Kennedy did not really tip his hand. He voiced concern on both sides of the law. He did initially ask aggressive questions about the government’s limits on Congress’ power. But he also indicated that the health insurance market may be something unique and within Congress’ power to deal with in a comprehensive fashion.

“Chief Justice Roberts may also be working through his position on the law, although he did not seem all that sympathetic to the government’s arguments. These justices are very good at playing devil’s advocate with lawyers on both sides. And that makes it very difficult to predict what they’ll decide when they sit down to think through the arguments and reach a decision.”

Health Care Reform in Supreme Court Day 2 Arguments

Our Health Page is full of related content, including a look at what two attorneys general — Massachusetts’ Martha Coakley and Virginia’s Ken Cuccinelli — would say if they were making arguments before the high court about the individual mandate. We also have much more about the law itself, including a timeline, a report card, a cheat sheet, and a public polling update. Finally, browse our photo essays of the ordinary Americans who traveled to Capitol Hill this week to support and protest the Affordable Care Act.