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First Take: Roberts, Kennedy hold the key to Obamacare

Richard Wolf
USA TODAY
Supreme Court Chief Justice John Roberts is one of two justices holding the key to Obamacare in his hands.

WASHINGTON — The fate of President Obama's health care law — as well as the federal subsidies relied upon by millions of Americans to make insurance premiums affordable — likely rests in the hands of two people.

That much was clear Wednesday morning during a tense, 80-minute oral argument inside a packed Supreme Court chamber, where top members of the Obama administration and Congress watched anxiously for the figurative white or black smoke.

What they saw were six justices quite certain about the question at hand: four liberals who clearly believe the law was meant to offer federal tax credits to all comers, and two conservatives who argued it simply doesn't read that way. Justice Clarence Thomas, always silent during oral arguments, is almost certain to take that side.

If virtually every observer's math was correct, that left the government with four votes and opponents of Obamacare with three. That's where Chief Justice John Roberts and Justice Anthony Kennedy come into play.

Roberts, the poker-faced leader of the court now in his 10th year, rescued Obama's signature domestic policy achievement in 2012 on what appeared to be almost a technicality. After deciding that the law violated the Commerce Clause of the Constitution, Roberts said it could be upheld based on Congress' authority to tax its citizens — in this case, through a penalty for not getting health insurance.

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On Wednesday, as justices on the left and right pounced on both of the polished litigators before them — Michael Carvin for the opponents, Solicitor General Donald Verrilli for the government — Roberts maintained an almost stony silence. If he had decided how to vote on the case, he didn't want anyone to know.

About the most noteworthy thing the chief justice said was a reference to that last case, which focused on the law's mandate that individuals buy insurance or pay a penalty. When liberal justices sought to tie Carvin to arguments he made in 2012, Roberts said, "We've heard talk about this other case. Did you win that other case?"

As the laughter in the courtroom subsided, Roberts added, "So maybe it makes sense that you have a different story today."

Supreme Court Justice Anthony Kennedy Kennedy is the most likely swing justice and could be key to Obamacare case.

Kennedy, who became the most likely swing justice upon the retirement of Sandra Day O'Connor in 2006, was more outspoken but equally hard to pin down.

During the first half of the argument, he said opponents' reading of the law created "a serious constitutional question" because states were told to create their own health insurance exchanges or suffer damaging consequences. At the same time, Kennedy said, "perhaps you will prevail in the plain words of the statute."

Later, when Verrilli said that to label the coercive offer to the states as unconstitutional would be a novel argument, Kennedy piped in: "Does novel mean difficult?"

"It does seem to me that if petitioners' argument is correct, this is just not a rational choice for the states to make, and that they're being coerced," Kennedy said.

And finally, near the end of the session, Verrilli again said that under opponents' interpretation, "the statute can't work." Kennedy asked, "Is that a synonym for ambiguity?" — a fallback position under which the law could be upheld.

"It seems to me a little odd that the director of Internal Revenue didn't identify this problem if it's ambiguous and advise Congress it was," Kennedy said.

By the end of the argument, the lawyers and their backers on the bench had made most of the essential arguments on both sides. Spectators with a dog in this fight may have thought they heard enough to assure victory.

But what they had not heard — definitive opinions from Kennedy or his boss, Roberts — spoke volumes. It will be nearly four months, in all likelihood, before the future of Obamacare is known.

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