Ginsburg clarifies: “So if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction?” Verrilli agrees. Justice Anthony Kennedy gets the biggest laugh of the day when he retorts: “Don't you want to know the answer?”
Verrilli then nails the understatement of the day when he replies: “Justice Kennedy, I think we all want to know the answer to a lot of things in this case.”
Justice Sotomayor probes what consequences Americans will face for the failure to buy health insurance, noting that some of the litigants contend that “there are other collateral consequences such as for people on probation who are disobeying the law, if they don't buy health insurance they ... could be subject to having their supervised release revoked.” Verrilli says that‘s wrong and that the only consequence for failing to buy insurance is that you must pay the penalty.
Justice Elena Kagan asks it this way: “Suppose a person does not purchase insurance ... pays the penalty instead, and that person finds herself in a position where she is asked the question, ‘have you ever violated any federal law,’ would that person have violated a federal law?” Verrilli says no, “If they pay the tax, then they are in compliance with the law.”
At which point Justice Breyer has to finally ask: “Why do you keep saying tax?” and Verrilli quickly amends his own prior statement to read: “If they pay the tax penalty, they're in compliance with the law.” He politely thanks Breyer for pointing this out. But I’m not sure he means it.
Both Breyer and Ginsburg question the notion that the purpose of the tax/penalty/tax-penalty provision is to raise revenues. Then Gregory G. Katsas, who represents the private parties challenging the law, gets 20 minutes to explain why the court needs to get on with it and hear the case. He spends a good proportion of that time volleying right up at the net with Sotomayor, and then tries to explain why the challenge here is to the mandate, not the penalty, so the Anti-Injunction Act isn’t an issue. Chief Justice Roberts is doubtful about that: “It's a command. A mandate is a command. ... What happens if you don't file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime.”
It’s unlikely the court will simply boot this case down the road. (At the end of the morning’s argument, Chief Justice Roberts thanks Long for stepping in and says, “We will continue argument in this case tomorrow.” Translation: The show will go on. And now it’s for reals.) One question is why we went to all the trouble of briefing, arguing, and roping someone in to defend the Anti-Injunction Act, if the court had every intention of blowing off the first gate and hearing all three days worth of argument. That’s the wrong question. The court actually did what it does best this morning—reading complex old statutes (when Kennedy asked Long why the wording of the Anti-Injunction Act was so weird, Long basically replied that’s how people wrote back in 1867), asking practical questions, and reaching what looked to be nearly universal agreement that they’ll hear the case this year. While protestors outside were hollering about religion and freedom, the justices were boring those of us inside almost senseless with statutory construction. And sometimes, check that, most of the time, boring is what the justices do best.
* Tomorrow will be the big show. The court will tackle the individual mandate and the Commerce Clause. (Wednesday is for severability and the Medicaid expansion.) For those of you looking for laser tag instead of 19th-century statutory interpretation, tune in tomorrow.
Dahlia Lithwick will be chatting with readers on Facebook about this week’s Obamacare oral arguments at 11:00 a.m. EST on Thursday, March 29.
Watch Dahlia Lithwick Give Her First Impressions of Monday's Opening Arguments