Apologizing to our readers for having advertised live audio that wasn’t, you really can find the Wall Street Journal’s live blog entries here. The Court’s official audio and transcript may be available as early as March 6, according to some early estimations. Based on accounts of observers who are commenting immediately, here are our first impressions of likely positions when we read the opinion, probably in late June.
Justice Ginsburg dug in early, questioning whether the people bringing the case have legal “standing” to sue. As expected, their counsel had reasonable answers.
Justice Kennedy, later joined by Justice Sotomayor, suggested that, if the subsidy language were read as the plaintiffs propose, it might exceed the power of Congress to coerce states by means of federal spending. A similar concern won a 7-2 majority back in 2012 in the individual mandate case, NFIB v. Sebelius.
Justices Breyer and Kagan suggested that the government’s reading of the subsidy language – availability through all ACA Exchanges, no matter whether state or federal – is the only practical reading. Justice Alito turned one such comment around in amusing fashion.
Counsel were given longer than the usual time, but it wasn’t enough. The argument went into the Supreme Court equivalent of double overtime, with Chief Justice Roberts trying to keep just one person talking at a time during the spirited debate.
Update March 4 (pm): To hear an excellent, in-depth, same day discussion of the King v. Burwell oral argument by Prof. Jonathan Adler, click here. Professor Adler agrees with us that, if the Government wins, federalism concerns voiced by Justice Kennedy will motivate the likely majority. And, if the Government loses, the Court might delay its mandate, perhaps for the remainder of 2015. Still, too close to call.