The New York Times on Thursday sounded a hopeful tone about oral arguments regarding ObamaCare, yet again in the Supreme Court. The headline for the Adam Liptak story trumpeted, "At Least One Justice Is in Play as Supreme Court Hears Affordable Care Act Case."
After noting that "the court’s four liberal members voiced strong support for the administration’s position," Liptak hyped, "In a pleasant surprise for the administration, however, Justice Anthony M. Kennedy, who was in dissent in 2012, made several comments indicating that his vote was in play."
The journalist made sure to quote Kennedy:
“Perhaps you will prevail in the plain words of the statute,” he told a lawyer for the challengers. But, he continued, “there’s a serious constitutional problem if we adopt your argument.”
Of course, as Politico pointed out, Kennedy asked tough questions of both sides:
It’s not just the lead attorney, Michael Carvin, who got an earful from Kennedy. The justice also raised doubts to Solicitor General Donald Verrilli, who defended the law for the administration, about whether the Internal Revenue Service should be able to interpret the phrase so broadly.
The administration, along with other supporters of the law, argue that if there’s any vagueness about what the statutory language means, a 1984 Supreme Court case called Chevron v. Natural Resources Defense Council gives federal agencies the authority to come up with a reasonable interpretation. In this case, that’s the IRS interpreting the health law’s language about subsidies, which are technically tax credits.
Kennedy, however, suggested he wasn’t sure the language was really all that vague.
“If it’s ambiguous, then we think about Chevron. But it seems to me a drastic step for us to say that the Department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here? Hundreds of millions?” Kennedy asked Verrilli.
Liptak made sure to note a liberal justice's chastisement of Michael A. Carvin, the represntative of the plaintiffs and the man advocating against the Obama administration's position:
Mr. Carvin’s style is brash and impatient, and some of the justices tried to slow him down. “Take a breath,” Justice Sotomayor told him at one point.
The Washington Post's Robert Barnes pushed the same point in a front-page story, hitting Carvin as "blustery":
Carvin was fast-talking and blustery, with elaborate gesturing and a determination to keep talking even when justices made it clear they wanted to ask more questions. “Wow. You’ve been talking a long time,” Kagan said at one point.
“Take a breath,” Justice Sonia Sotomayor counseled.
The case will be decided in late June.
