Consensus seems to be that the oral arguments on the constitutionality of the health care law did not go well today. Couple things:
1. Beware groupthink. I only skimmed some of the transcript and comments. But it didn’t sound THAT bad.
2. Oral arguments just don’t matter that much. It’s a small window into the thought process of these people. But even there, it’s pretty guarded. Particularly for someone like Kennedy – whichever way he comes down on it, he’s going to be very sensitive to how it will look. So making sure he’s picking at the weak parts of the argument is going to be important to him, so he knows what he has to justify.
3. Some of the worst things today had to do with the apparent lack of understanding (or belief) that the mandate is necessary for the broader function of the law. There’s a decent chance that this argument will get pushed more forcefully tomorrow when they discuss separability.
4. That said, it is kind of a bummer.
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