Weather Updates

Justice Kennedy the potential swing vote on health care ruling

Updated: July 23, 2012 7:23AM

WASHINGTON — Supreme Court watchers point to Justice Anthony Kennedy as the potential swing vote on the landmark Obama health-care law case — with a ruling due as early as 9 a.m. Thursday in the midst of a presidential campaign.

The decision is viewed as so historic that the chair of the Senate Judiciary Committee, Sen. Patrick Leahy (D-Vt.), and the ranking member, Sen. Chuck Grassley (R-Iowa), asked the high court Monday for a first: to allow television coverage of the decision.

“Broadcasting the court’s ruling would permit millions of citizens the opportunity to view what so few can from the court’s small and limited public gallery,” the senators wrote.

After three days of oral arguments in March on the case, much of the betting is on a 5-4 decision — close either way. A one-vote margin — to uphold the law, find it unconstitutional or strike down portions of it — will give both Democrats and Republicans political cover in the election year health-care debate in congressional contests and the presidential race.

Tea leaf readers looking for signs pointed to the two hours of questioning over the individual mandate — a central part of the law, effective in 2014 — that calls for everyone to have health insurance or pay a penalty. An issue is whether the individual mandate can be jettisoned with the rest of the law preserved.

Solicitor General Donald Verrilli — who defended the Obama administration — took more than 100 questions from the justices, while the lawyers challenging the law got about only 87, according to CNN’s count.

As CNN reported, “Verrilli, in the view of many court-watchers, had a bad day, struggling at times to find his voice and fend off a furious rhetorical assault by some skeptical members of the bench.

“Chief Justice John Roberts was especially tough — he interrupted Verrilli 23 times, but only on seven occasions on the other side.”

“You are,” Kennedy told Verrilli, “changing the relationship of the individual to the government.”

Conventional wisdom in this highly watched case seems to agree: justices appointed by Democrats will likely back the Obama law, the Affordable Health Care Act, based on their questions and their liberal orientation. Those are Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — with the last two women appointed by President Barack Obama.

Chief Justice John Roberts Jr. and justices Antonin Scalia and Samuel A. Alito Jr. — all GOP appointees — asked skeptical questions. Justice Clarence Thomas, who almost never asks questions, usually votes with his Republican, or conservative colleagues.

Some court watchers pegged Roberts as a possible cross-over: there is consensus that the justice to watch is Kennedy.

Kennedy, an appointee of former President Ronald Reagan, has a reputation as a swing vote. Wrote Bloomberg/Business Week’s Greg Stohr, “Kennedy has cast pivotal votes at the U.S. Supreme Court on terrorism, school integration, clean water, the death penalty, gun rights, abortion and campaign finance. Health care may be next.”

© 2014 Sun-Times Media, LLC. All rights reserved. This material may not be copied or distributed without permission. For more information about reprints and permissions, visit To order a reprint of this article, click here.