I have been arguing over in this thread that I believe there is both a strong basis and considerable reason to hope for an overturning of Obamacare. In coverage of today’s session the Washington Post provides quotes from four center-right justices that point in that direction. Clarence Thomas rarely speaks during public sessions but he is viewed as the most likely justice to vote to overturn.
Justice Anthony M. Kennedy suggested that the 2010 Patient Protection and Affordable Care Act invoked a power “beyond what our cases” have indicated the Congress possesses to regulate interstate commerce. “Can you create commerce in order to regulate it?” he asked.
“So if I’m in any market at all, my failure to purchase subjects me to regulation?” Justice Antonin Scalia wanted to know. When Justice Ruth Bader Ginsburg observed that “the people who don’t participate in this market are making it much more expensive for those that do,” Scalia [responded],“You could say that about buying a car. If people don’t buy a car, the price [that car buyers] will pay will be more.”
Chief Justice John G. Roberts Jr. wondered if the government could require everyone to buy cellphones, since that would facilitate the government’s system for providing fire and ambulance services in emergencies.
Justice Samuel A. Alito Jr. brought up burial services. Aren’t people who don’t have burial insurance making a decision about how they are going to pay for their inevitable funeral, he asked.
Those are telling quotes. They don’t strike me as either misdirection or pro forma comments. Scalia and Kennedy in particular seem to be very unimpressed by the government’s arguments.