Kai Ryssdal of Marketplace was talking with reporter Gregory Warner this morning about the reactions of Justice Kennedy to the arguments before the Court. Anthony Kennedy, says Warner, appears to be on both sides of the fence.
Warner: Can the government make that person buy insurance? And the liberal Justices on the court, they posed questions that suggested absolutely, because we never know when that person might get hit by a bus, and anyway, they're going to get older and sicker eventually. In Justice Kagan's words, the subsidizers become the subsidized. But conservative Justices say, uh oh, no way -- this is an overstep of federal power.
Here's Justice Kennedy from this morning's hearing.
Justice Anthony Kennedy: And here the government is saying that the federal government has a duty to tell the individual citizen that it must act. And that is different from what we have in previous cases. That changes the relationship of the federal government to the individual in a very fundamental way.
Ryssdal: So this is Justice Kennedy -- the swing vote, as we've been told oh so many times -- but also raising this question about personal freedom, right?
Warner: Exactly -- though swing, swing he did, I will say. Justice Kennedy -- more than any Justice this morning -- was arguing both sides. Because in another point, he said, hey look, that guy on the couch, he is part of the market for an actuarial reason, because in health care, we really are all in this together.
Kennedy: The young person who's uninsured is uniquely, proximately very close to affecting the rates of insurance and the cost of providing medical care in a way that is not true in other industries, that's my concern in the case.
Warner: So take your pick: Kennedy 1, Kennedy 2? It could be the fate of the health care law.
