Kagan and Sotomayor lead the liberal bloc in defense of 'half a loaf'
The Roberts Court, with Obama appointees.
7:34 am Mar. 29, 2012
Paul Clement, the attorney representing the 26 states challenging the president's health care law, got exactly one sentence into his oral argument this afternoon before he was interrupted by Justice Elena Kagan.
"Mr. Clement, can I ask you just a matter of clarification?" Kagan wondered, before drawing Clement into an extended inquiry about when it becomes coercive for the federal government to wield its Medicaid money as a cudgel to make states expand coverage.
It was a few minutes before anyone else got a word in edgewise, and when someone did, it was another liberal New Yorker, Justice Sonia Sotomayor.
Despite being the two newest members of the court, Kagan and Sotomayor were among the most aggressive justices during the third and final day of oral argument, which was split between a morning discussion of whether the 2,700-page health care bill could be selectively dismantled by the court if it finds the individual mandate unconstitutional, and an afternoon discussion on the constitutionality of the bill's Medicaid expansion.
Combined, the two Obama appointees have been on the court for a little more than four years, or just over half as long as the next-newest member, Justice Samuel Alito. And, while the pair have been noted for their volubility before, it was somewhat striking to see them taking the lead among the court's four-member liberal bloc, in the court's most highly anticipated case since Bush v. Gore.
During the morning session, which took on a new importance after a majority of the court showed itself to be highly skeptical of the mandate in yesterday's argument, it was Sotomayor who interrupted Clement first, to ask why the court shouldn't defer to Congress on the rest of the act, and leave some of the separate provisions in place even if it strikes down the mandate.
"I mean, I would think you're going have to take the bitter with the sweet," said Clement, who was arguing that the entire act should be invalidated, since the mandate to buy insurance (bitter) helped to pay for other provisions, like expanded coverage and health exchanges (sweet).
The justices were, on the whole, skeptical of that idea, but particularly the liberal bloc, and especially Kagan and Sotomayor, who each argued that the state health exchanges required by the new law could, theoretically, stand on their own, regardless of the mandate.
"The question is always, does Congress want half a loaf," Kagan said. "Is half a loaf better than no loaf? And on something like the exchanges, it seems to me a perfect example where half a loaf is better than no loaf."
Chief Justice John Roberts offered a different metaphor, wondering if the bill without the mandate would just be a "hollow shell."
The administration, represented by Deputy Solicitor General Edwin Kneedler, was in the somewhat awkward position of first restating its position that the mandate should be upheld, and then arguing the hypothetical that, if it isn't, only a few closely related provisions should go down with it.
As President Obama's only appointments to the court, Kagan and Sotomayor generally tended toward the administration's position, which is not to say they were entirely uncritical. At one point Sotomayor chastised Kneedler for not answering her question, saying, "I've asked you three times to move around that."
And Kagan showed a willingness to go right at Justice Antonin Scalia, the longest-serving member of the current court, who had made an Eighth Amendment joke about whether the parties really expected the court to consider all 2,700 pages of the bill and sort through which parts were valid. (The Eighth Amendment bars cruel and unusual punishment.)
Kagan was arguing that the court shouldn't get mired in the "parliamentary shenanigans" of how the bill was passed, and whether certain compromises would have been enacted with or without the mandate.
"Instead, we look at the text that's actually given us," she said. "For some people, we look only at the text. It should be easy for Justice Scalia's clerks."
The crowd of court-watchers laughed. (Scalia has long preached a strictly textual interpretation of the law.)
Throughout the day, Kagan and Sotomayor largely overshadowed their fellow liberal justices, the Clinton appointees Stephen Breyer and Ruth Bader Ginsburg, though Breyer drew laughs at one point for suggesting maybe Clement and Kneedler could get together to decide which portions of the bill could stand without the mandate.
"You can have a conference committee report afterwards, maybe," Scalia said, sarcastically, to laughs.
Justice Anthony Kennedy was, as usual, difficult to discern, questioning whether the court should be asking itself whether the separate provisions could stand alone, or whether Congress intended them to exist by themselves, while also worrying about the potential effects on the health care industry if it was forced to extend coverage without the benefit of the mandate.
In the afternoon, Clement argued that the law's new Medicaid program, which requires states to cover more of the uninsured, in return for accepting Medicaid money, was unduly coercive, since most states had come to rely on those funds over the years.
Kagan and Sotomayor both aggressively questioned that premise, with Sotomayor wondering what percentage of the state's budget would have to be for those funds to be coercive, and later, Kagan asking for a precise dollar amount at which a big program becomes coercive.
Kagan said she couldn't understand why a hypothetical program similar to the actual one, which covers 100 percent of costs at the outset, before dropping down to 90 percent, was such a problem.
"There are no matching funds requirement, there are no extraneous conditions attached to it, it's just a boatload of federal money for you to take and spend on poor people's healthcare," she said. "It doesn't sound coercive to me, I have to tell you."
