That was an early consensus of many media analysts yesterday. This was based on the tone of the questions of the conservative justices including Anthony Kennedy who many thought could give the law it's fifth vote-the four liberals are expected to vote for it.
There were a lot of "slippery slope" questions that were of the reduction abusrdem form-'as the government can force or mandate private citizens to enter a market where can we draw a line?'
Of course, the trouble with reduction absurdem arguments is they aren't always very compelling; they can simply be misleading as I think they tiresome question of the government somehow being left free to order us to eat broccoli was.
Kennedy asked a question as to whether or not this new law indicates a fundamentally new relationship between private citizens and the government.
A few observations. For one thing, this SJC challenge is nothing new-it was done for Social Security, the National Labor Board, and Medicare. Whenever something new in this way is passed, there are conservatives that force it to the Supreme Court.
Of course these previous challenges were met. The proviso is that these were more liberal courts-actually the court for FDR had been rather obstructionist-"the Four Horsemen of Reaction" till FDR suggested his court packing scheme.
At the present, the distinction between the Affordable Care Act and Social Security and Medicare is that these are funded through straightforward taxation-the government is recognized as having this power.
The slippery slope and reduction absurdem arguments are often misleading. There's no reason why we have to believe that the health care mandate will at some point mean we will be forced to have a gym membership, cell phones, or broccoli.
One obvious difference is that health care is a basic need in the way that a cell phone or gym membership isn't. There is reason to wonder whether or not the health care market is different. With all the talk about it being wrong for some to have to pay for the health care of others, this is how private health insurance works by definition.
Health care is only a profitable industry because there are much more healthy people who pay the premiums than sick.
There is reason to think that Kennedy may get this,, at least he did say something later that suggested health care insurance may be different in terms of markets. Indeed, Kennedy did ask some tough questions of the plaintiffs' later on.
You can definitely read too much into the questions. This is not by itself always much of a gauge. It may be that we will see yet another 5-4 win for conservatives, but not necessarily. The tone of questions is not enough to prove this.