Live Blog: Monday’s Health Care Arguments

3:11 p.m. Today’s live blog is ending. Be sure to check back to the main blog page early tomorrow for our live blog of Tuesday’s argument about whether Congress can compel Americans to purchase health insurance.

3:10 p.m. Bloomberg News Supreme Court reporter Greg Stohr reviews highlights of today’s arguments with Bloomberg Law’s Spencer Mazyck:


1:39 p.m. Staying with the politics theme for the moment, former Democratic National Committee Chairman Howard Dean takes a view contrary to most of the legal observers, telling CBS This Morning that the individual mandate will be struck down:

“I do believe that it’s likely the individual mandate will be declared unconstitutional. Kennedy will probably side with the four right-wing justices. But I’d be very surprised if they — I think Kennedy will switch sides and it will be 5-4 in favor of severing that finding from the rest of the bill. The question is going to be, is this individual mandate question, can that be considered separately from the rest of the bill? And I think it will be.”

1:31 p.m. Republican presidential candidate Rick Santorum appeared outside the Supreme Court after the justices heard their first day of arguments on the new health-care law and attacked Mitt Romney, saying his rival for the nomination is “the worst person” to try to debate the topic with President Barack Obama, Bloomberg News’ Julie Hirschfeld Davis reports. Romney “can’t, because he supported government-run health care as governor of Massachusetts,” the former Pennsylvania senator said.

1:23 p.m. This is the most SEO-friendly post about today’s health care cases: From the demonstrations earlier today — SCOTUS and a cute puppy (From Jacqui Scanlon’s Twitter feed):

1:13 p.m. CNN legal analyst and New Yorker writer Jeffrey Toobin has the most succinct summation of this morning’s proceedings. From his Twitter feed:

1:01 p.m.  Bloomberg News’ Jeff Bliss reports that  Ezekiel Emanuel, a former Obama administration health policy adviser, told reporters outside the Supreme Court after today’s arguments had finished that he got a seat with the help of unlikely person — Justice Antonin Scalia.

As he sat in a seat originally designated for “Mrs. Scalia,” Emanuel, who runs an ethics department at the University of Pennsylvania’s Perelman School of Medicine, said that it was apparent the justices think the health care law is something within their jurisdiction to review. “They made it quite clear they want to decide this case,” said Emanuel, whose brother is Rahm Emanuel, Obama’s former chief of staff and the current mayor Chicago.

12:54 p.m. The transcript and audio tape of this morning’s session are now available.

12:52 p.m. More major media outlets weigh in with overviews of this morning’s action:

Washington Post: [The court] indicated that it was unlikely to find that a 19th-century law about tax challenges barred a constitutional decision about whether Congress exceeded its powers.

USA Today: Justices on the court’s liberal and conservative wings seemed skeptical that the law, known as the Anti-Injunction Act, would serve as a roadblock to deciding the constitutionality of one of the Obama administration’s signature accomplishments.

NPR: Nina Totenberg says she saw “a bunch of justices groping for a way to get to the merits of this case.”

NY Times: The justices appeared receptive [to arguments to deal with the substance of the cases now], suggesting that they will reject the argument made by an outside lawyer that it is too soon to rule.

12:15 p.m. I sense a theme developing here:

MSNBC: After hearing Monday’s 90 minutes of oral argument, NBC’s Pete Williams reported that “There didn’t seem to be a single member of the Supreme Court that bought that argument [that the penalty is a tax].”

Reuters: U.S. Supreme Court justices signaled on Monday that they saw no procedural barrier to reaching the heart of the dispute over President Barack Obama’s healthcare law that requires most Americans to buy insurance or pay a penalty.

SCOTUSblog: The comments and questions of the Justices during the 89-minute exchange left the distinct impression that they are prepared to rule on the constitutionality of the mandate that individuals must buy health insurance, and not push the issue off into the future.  The exact route they would take was a bit uncertain, but their skepticism about taking a pass was clear.

12:07 p.m. The Wall Street Journal also concludes the court is likely to find the Anti-Injunction Act no bar to proceeding to the substance of the health care cases: “As Solicitor General Donald Verrilli sits down, it appears he faced much less hostile questioning that Mr. Long, who was appointed by the court to argue that litigation on the health law should be delayed until 2014 .  By all indications so far, the court appears likely to believe that there are no jurisdictional impediments that will prohibit it from considering the constitutionality of the insurance mandate.”

The paper also reports there were  “120 seats in the courtroom for the general public, and another 34 seats that rotated every three to five minutes, giving more court watchers a brief chance to glimpse the proceedings.  There were another 76 seats for members of the Supreme Court bar and 117 seats for members of the media.”

11:52 a.m. Robert Iafolla, SCOTUS reporter for legal paper LA Daily Journal, tweets that “SCOTUS signaled that the Anti-Injunction Act will not prevent deciding the constitutionality of the individual mandate.”

11:47 a.m. Today’s argument is over. More coverage from around the web upcoming.

11:45 a.m. In U.S. Solicitor General Donald Verrilli’s turn to address today’s issue, the Wall Street Journal reports:

Justice Samuel Alito jumps in and appears bothered by difference between what the federal government is arguing Monday versus what it will argue Tuesday.  He notes that for jurisdictional purposes, the government is arguing the insurance mandate penalties are not a tax.  But he points out that on Tuesday, the government will argue that, for constitutional purposes, the penalties do function like a tax.  Mr. Verrilli responds that the arguments are different because the two legal questions are different.

11:41 a.m. Justice Ruth Bader Ginsburg also gave Long a skeptical hearing, report Bloomberg News’ Greg Stohr and Laurie Asseo. “This is not a revenue-raising measure,” she said. “If it’s successful, nobody will be paying the penalty and there will be no revenue to raise.”

11:38 a.m. CNN is reporting that 110 members of the public — almost double the initial estimate — were admitted to watch Monday’s arguments, along with 117 credentialed members of the media.

11:37 a.m. SCOTUSblog’s Kevin Russell has a 3-minute audio update, filed just after Long concluded his argument. Justices posed skeptical questions — also no surprise.

11:33 a.m. Meanwhile, back outside the building, it’s a mix of serious and circus, reports Bloomberg News’ Jeff Bliss. After about 120 health care law supporters finished a rendition of “We Shall Overcome,” someone yelled, “Freebird”!

11:17 a.m. The Wall Street Journal has more on the justices’ comments during Robert Long’s argument:

Justice Stephen Breyer told Mr. Long that he was “probably leaning in favor” of his arguments about the importance of upholding the principle of the Anti-Injunction Act, but asked whether Mr. Long thought it applied in the health case because the act is intended to prevent interference with a revenue source. The individual mandate penalty, the judge said, isn’t intended to be a revenue source.

Justice Sonia Sotomayor made a similar point, saying that the penalty was mainly designed to get people to buy insurance. “If it’s successful, nobody will pay the penalty,” she said.

Mr. Long challenged that, pointing to projections that the penalty would raise some funds.  He also said that had it simply been called a tax in the health law, “there would be absolutely no question that the Anti-Injunction Act applies.”

11:12 a.m. The Washington Post’s Erik Wemple blogs under this headline: Supreme Court on health care law: What’s going on in there? That’s so five minutes ago.

11:08 a.m. The Associated Press moved this as an Urgent dispatch, yet it is of surprise to precisely no one:

Eight of nine justices fired two dozen questions in less than half hour at Washington attorney Robert Long. He was appointed by the justices to argue that the case has been brought prematurely because a law bars tax disputes from being heard in the courts before the taxes have been paid.

11:01 a.m. Over at SCOTUSblog, attorney Tom Goldstein steps out of the courtroom to say he believes there are at least five votes to get past the Anti-Injunction Act and get to the substance of the health care cases. But with additional arguments to come, that’s just a tentative view.

10:57 a.m. Bloomberg News’ Greg Stohr and Laurie Asseo have a first look inside the courtroom:

“There is at least some doubt about” whether the court should even rule on the cases,  Justice Antonin Scalia told Robert Long, the lawyer arguing that the court should not decide the case. “I find it hard to think this is clear.”

The justices are considering whether an 1867 law bars them from ruling for now on the law that requires almost every American to get health insurance by 2014 or pay a penalty.

“Congress has nowhere used the word tax” to describe the penalties to be paid by people who fail to get health insurance, Justice Stephen Breyer told Long.

Long urged the court to dismiss the case under the 1867 Anti-Injunction Act, which bars people from challenging taxes until they have been assessed. The health-care law’s financial penalties amount to a tax, Long argued, saying that because they won’t be imposed before 2015, opponents shouldn’t be allowed to go to court earlier.

10:52 a.m. As the lawyers duke it out inside, protestors outside the court are beginning to get a little testy, Politico reports.

One opponent of the health reform law shouted to the pro-reform side, “This is socialist health care!” Another chimed in: “Did you read the bill? It rations!”

To which a supporter of the law responded: “Where are you getting these facts?”

Another opponent of the law demanded, “Why should I have to pay for your contraception?” — a reference to the contraception coverage mandate the Obama administration has issued under the law.

One problem: He said it to a guy.

10:28 a.m.  In the opinions and orders issued this morning, Bloomberg News reports the court:

  • Ordered a lower court to revisit whether human genes can be patented in light of the justices March 20 decision that limited the ability to obtain legal protection for some diagnostic medical tests. Association for Molecular Pathology v. Myriad Genetics, 11-725.
  • Won’t review a $28.3 million wrongful death verdict against R.J. Reynolds Tobacco Co., declining to consider legal questions that may affect thousands of similar cases by smokers and their families.  R.J. Reynolds Tobacco Co. v. Martin, 11-741.
  • Declined to hear a challenge to the power of the National Labor Relations Board’s general counsel to bring complaints when the board lacks a quorum. HTH Corp. v Frankl, 11-622.
  • Refused to consider reinstating a Wisconsin law that banned hormone treatments or sex-change surgeries for transgender prison inmates. Smith v. Fields, 11-561.
  • Told a lower court to reconsider deadlines for some securities lawsuits, in a dispute about whether investment banks must face accusations that they manipulated dozens of initial public offerings. Credit Suisse v. Simmonds, 10-1261.

10:15 a.m. The court’s hearing in the health care cases is now under way, having issued opinions in several other cases.

10:03 a.m. Still outside the building, Bloomberg News reporter Jeff Bliss reports: Matthew Perdie, 26, endured an 11-hour trip on a broken-down bus from Jim Thorpe, Pennsylvania, to hold a “Don’t Tread on Me” flag in front of the Supreme Court. The banner was made from swatches of material with the signatures of supporters from across the country, he said.

“I’m doing what I can to resist the tyranny” of the health care law, he said. Perdie, a video editor,  said he walked across the country in 2009 and 2010 to highlight the cause of limited government. If confronted with  more competition from the free market, insurers would offer coverage to people with pre-existing conditions.

9:59 a.m. Today’s session is about to get underway in the courtroom. And now we wait to see who will step out of the room first with an update on what is said.

9:50 a.m. Bloomberg News reporters Drew Armstrong and Jeff Bliss report the spectator crowd has an international dimension.

Quang Trinh, 37, from Sydney, was in Washington to judge an international moot court competition. He is hoping to see the arguments on his day off, so he showed up this morning and got in the back of the line.

“For years, I’ve been hearing about the intense challenge of fronting up to the bench,” Trinh said. “I’m interested in seeing how a very good advocate does in front of the Supreme Court.”

9:33 a.m. GOP Presidential candidate Rick Santorum plans to speak to the media from the Supreme Court steps around midday today, tweets Huffington Post senior political reporter Jon Ward. He’s not believed to be attending this morning’s arguments.

9:30 a.m. The final 10 spectators have been escorted into the Supreme Court building. Huffington Post producer Sara Kenigsberg  has the video, which includes a snippet of the brass band playing in front of the court.

9:15 a.m. This morning’s C-SPAN poll about politics an the justices (see 7:45 a.m., below) mirrors results from a Bloomberg News poll that came out two weeks ago. It found that 75 percent of Americans think politics will influence the justices’ votes, while only 17 percent think the Supremes will vote solely on the legal merits. Eight percent weren’t sure.

Bloomberg Businessweek’s Paul Barrett points out the sorry fact that “we the people don’t believe a central premise of junior high school civics: The judiciary operates according to the dictates of the Constitution and other laws, as opposed to raw politics and personal preferences.”

9:09 a.m. Supreme Court arguments are normally no longer than an hour. How do lawyers prepare for a marathon of six hours of argument over three days? The New York Times’ Adam Liptak reports that Paul Clement, lawyer for the challenging states, conducted five moot court sessions last week, with lawyers playing the roles of justices to sharpen his presentation. They took place at Georgetown University School of law, the National Association of Attorneys General and the U.S. Chamber of Commerce.

Lawyers in the Solicitor General’s office, who will be defending the law, also hold moot courts, but in a setting less grand. “It’s just the lunchroom, basically,” Neal K. Katyal, who was the acting solicitor general until last summer and who defended the health care law in federal appeals courts, tells Liptak. “There is probably not a room in Washington that looks less like the United States Supreme Court.”

8:53 a.m. Bloomberg TV’s Megan Hughes breaks down what to expect at this morning’s arguments.

8:49 a.m. A survey 0ut this morning of 66 former Supreme Court clerks and lawyers who argue before the court has found that a majority think the court will uphold the Obama health care reform law. The survey found that:

  • 73 percent think the court will find the Anti-Injunction Act does not apply to the individual mandate, clearing the way for the court to rule on the cases’ merits.
  • 65 percent think a majority of the court will find the individual mandate is constitutional.
  • 81 percent think the court will find the federal government can compel states to expand Medicaid eligibility.

The survey was conducted by the American Action Forum and the Blue Dog Research Forum.

8:33 a.m. How is a Supreme Court argument like flying? The court’s public information office staff are asking reporters to take off their belts to speed the process of going through the magnetometer outside the courtroom, reports Bloomberg News’ Greg Stohr.

8:05 a.m. The protestors have arrived. From the Twitter feed of Huffington Post reporter Mike Sacks:

7:53 a.m. From the Twitter feed of ABC News correspondent Ariane de Vogue, here’s the ticket of the first person in the spectator line:

7:45 a.m. If you’d like to be able to watch today’s arguments on television, you’re in the majority, a C-SPAN poll (PDF) released over the weekend found. It reports 86 percent of Americans think the court should allow televising the health care oral arguments. (C-SPAN and Bloomberg, among other media organizations, unsuccessfully petitioned the court to allow cameras into this week’s arguments.)

About 65 percent of respondents said the health care arguments will show that the justices are split along political lines; just 35 percent said they will demonstrate the court “acts in a serious and constitutionally sound manner.”  Yet about 60 percent said they approve of  “the overall effectiveness of the Supreme Court.” Make of those statistics what you will.

The survey of 1,000 Americans was conducted March 21-22, and has a margin of error of plus or minus 3.1 percentage points.

7:37 a.m. If you want to follow the conversation about the cases on Twitter, there’s no easy way to separate the signal from the noise. The hashtags #HCR, #Obamacare and #HealthCare are popular, but too popular — retweets and screeds are gunking up the feeds. You might try searching for SCOTUS — short for Supreme Court of the United States — which tends to be used more by folks in the know. Or you could follow our hand-built list of reporters and news organizations covering the case; it also includes several spectators.

7:25 a.m. More on the line sitters from the National Journal, which reports “rumor has it they’re being paid between $5 and $13 per hour to endure the elements and leg cramps.”

7:15 a.m. Bloomberg TV’s Megan Hughes took a look on Sunday at the area just across the street from the Supreme Court where protesters, TV cameras and pundits will congregate.

7:11 a.m. The sun is up in D.C. Here’s a shot of where the lawyers will be doing post-argument media briefings, from Bloomberg News’ Drew Armstrong.

7:06 a.m. Here’s a sampling of the curtain-raisers the major media outlets have filed in advance of this morning’s arguments:

Bloomberg: Court Opens Health-Care Debate With Law That Might Derail Case
New York Times: Health Act Arguments Open With Obstacle From 1867
Washington Post: Supreme Court to hear arguments on timing of health-care ruling
LA Times: Medicaid could be in Supreme Court’s sights
USA Today: 3 epic days: Health care law reaches high court
Wall Street Journal: Health Law Heads to Court
The Atlantic: 10 Things to Bear in Mind During the Health Care Arguments

6:54 a.m. Here’s a look at the media doing their morning stand-up shots fin front of the court and the spectator line wrapping around Capitol Street, from Bloomberg News’ Drew Armstrong.

6:36 a.m.  Some of those waiting in line are doing so for others — they are professional line sitters. Huffington Post has a video  interview with the foreman for The Washington Post also weighs in on the economics of paying someone to stake out a place in line.

6:25 a.m. At 6:00 a.m. today, the line of people waiting for seats to the oral arguments was about 100 people long, reports Bloomberg News’ Drew Armstrong. Which is bad news for those near the back, since there are just 60 seats available for members of the public who want to sit through all of today’s hearing. However, some in the front of the line may choose to skip today’s session, holding their places for tomorrow’s arguments about the individual mandate.

Several of those in line have been tweeting their experiences, including Monica Haymond, Doug McPherson and Kathie McClure, and J. Dana Stuster. Haymond is also blogging about her experiences.

Here are some of their choicest bits from over the weekend:

5:55 a.m. Welcome to Day One of the Supreme Court oral arguments in the health care reform cases. This is your live blog to all the action. Reload this page throughout the day for our latest updates.

We’ll be aggregating in real time the best coverage from across the Bloomberg media universe, as well as from other news outlets, the blogosphere and social media channels. And we’ll do the same tomorrow and Wednesday, as the oral arguments continue.

What makes live blogging this particular event difficult is that the courtroom is devoid of the electronic equipment of modern life. No laptops, cell phones or cameras are allowed. And once reporters leave the room, court policy stipulates that they’re out for the rest of the session. But we expect some reporters and other observers will make an early exit, and we’ll be here to bring you the first reports from inside, along with all the analysis that will follow.

Today’s session is the undercard of the three days of arguments. At issue today will be whether the penalty Americans who don’t buy health insurance would have to pay is a kind of a tax. If it is, does the Anti-Injunction Act — which requires people who seek to challenge taxes to have first paid the tax — mean the health care challenges will have to wait until 2014, when the penalty portion of the law kicks in?

Today’s session gets underway at 10:00 a.m. ET, but the court will first hand down one or more decisions in other cases. That could take 15-20 minutes, depending on whether one or more dissenting justices choose to read portions of their opinions aloud. Then the 90 minutes of health care argument begin.

If you’re still getting up to speed on the issues, this Bloomberg Law video gives you a roadmap to the next three days in 90 seconds:


The nuances of today’s session are covered in this Bloomberg Law  interview with New York Law School Professor Nadine Strossen:


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