Audio update from Tom

By Tom Goldstein
on Mar 27, 2012 at 11:44 am

I stepped out of the oral argument to provide this audio report (at bottom of page).

For those who prefer reading, here is a summary of the report:

Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble.  It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli.  On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions.  Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden.  At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality.