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Skeptical questioning of the individual mandate at the heart of President Barack Obama’s health care overhaul by the Supreme Court’s conservative bloc, and swing vote Justice Anthony Kennedy in particular, raised the hopes of top Republicans on Tuesday that the court will overturn the law.
“It was noteworthy that the four more liberal members of the court were mainly peppering the plaintiffs and the other five were mainly peppering the government, leading us to hope this awful law will be overturned,” Senate Minority Leader Mitch McConnell (R-Ky.) said after sitting in on the arguments.
Senate Republicans and a trio of GOP state attorneys general cited the questions posed by Kennedy — which showed his concern about the law’s reach — as proof that the court was apt to strike down the law’s requirement that individuals purchase health insurance.
Sen. Ron Johnson (R-Wis.), who ran for election in part to overturn the law, called Tuesday’s arguments pivotal to the nation’s history.
“I was encouraged that they were asking the right questions,” he said. “Can the government compel you to buy a product?”
Democrats, however, comforted themselves by saying the sharp questions don’t necessarily illustrate how the justices will vote.
“I think there are probably a few votes on each side that are pretty determined and a few votes up for grabs,” Sen. John Kerry (D-Mass.) said. But Kerry later said it would be a big mistake to draw firm conclusions about the opinions of Kennedy or other justices based on the questions alone.
“Sometimes people are playing devil’s advocate, sometimes they are trying to flesh out their thinking,” he said. “Anybody makes a big mistake to take a question and say this is how somebody’s going to vote.”
Senate Majority Leader Harry Reid (D-Nev.) brushed off a prediction from CNN analyst Jeffrey Toobin that the law was in grave trouble and likely to be overturned.
“I think you cannot base what the court’s going to do based on the oral argument,” Reid said. “I think that the argument went just fine.”
But Reid conceded that a decision to overturn the law actually could benefit the president.
“There’s a significant school of thought that the administration is in a better position for the election if it’s turned down,” he said.
Other Senate Democrats tried to deflect criticism of the mandate — the most unpopular part of the law — by tying it to Republicans, including GOP presidential frontrunner Mitt Romney, the former governor of Massachusetts.
Democratic Conference Vice Chairman Charles Schumer (N.Y.) recited for reporters the history of conservatives and Republicans supporting the policy.