In a historic judicial review process, the SCOTUS has been hearing oral arguments this week on the constitutionality of the Affordable Care Act that narrowly passed Congress last year.  The health care bill became law largely due to the personal lobbying efforts of President Obama himself.

Today, the nine justices, in order of seniority, will cast their initial vote to decide the case.  If he is among the majority, Chief Justice John Roberts will assign a justice, probably himself, to write the opinion for the majority.  If the Chief is not among the majority, the most senior justice in the majority will assign the lead opinion.

In a case this complex, sub-issues may be assigned to justices voting in the majority; dissenters often write separate opinions.

Among the issues framed for the High Court to decide: the constitutionality of the "individual mandate" making health insurance coverage mandatory and implementing a penalty tax for going "naked"; and the constitutionality of the provision expanding the federal and state health care partnership for the poor, known as MEDICAID.  The latter issue affects states' rights to the extent the federal requirements become overbearing and unconstitutionally encroach upon the autonomy of the states.

There has been a steady stream of high-quality intellectual blogging among the high-brow court watchers dissecting the marathon arguments.  By all counts, many of the Justices have been actively questioning the lawyers.  For example, in the final session yesterday afternoon, the four liberal Justices peppered Washington attorney Paul Clement with a series of questions presumably designed to get Clement to identify when federal government requirements, the spending clause limits, become onerous to the point of coercion.

Mr. Clement's worthy opponent, Solicitor General Donald Verrilli, Jr., had his hands full earlier in the week getting grilled by the conservative Justices.  As usual, however, Justice Clarence Thomas sat silent throughout the historic arguments, as is his custom.

Like so many crucial SCOTUS votes, this case may come down to Justice Kennedy.  He seemed to warm to the coercion theory propounded by the challengers of the ACA.

Near the end of the marathon session, in response, the Solicitor General urged the High Court to step back from the Medicaid expansion and the individual mandate arguments, and view the issues in more humanistic terms, equating affordable health care coverage among our "blessings of liberty".

We will probably not know how the Court has voted until early summer.  Stay tuned.

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