I've never pretended to be anything other than a fool, so engaging in fool's errands like predicting the outcome of appellate cases from statements made during oral arguments doesn't bother me.
Looks like the best the administration can hope for is a 5-4 loss on the individual mandate issue. The split is, well, unsurprising:
AGAINST: Roberts, Kennedy, Scalia,Thomas,
1 Alito
FOR: Ginsburg, Breyer, Sotomayor, Kagan (maybe)
The transcript of yesterday's arguments regarding constitutionality of the individual mandate (pdf, 133 pages) is
here.
Today's arguments are about (1) how much of the Affordable Care Act fails if the individual mandate gets shot down, and (2) constitutionality of the Medicaid expansion provisions.
Reports indicate that the first issue is reducing the justices to a state of gibbering incontinence.
2 Wouldn't be surprised to the Court formulate some broad, squishy criteria and remand the case to the court of appeals for the brutal work of applying those criteria to the ACA on a provision-by-provision basis. Hell, they might even remand to the trial court for an evidentiary hearing.
1Thomas almost never says anything during oral arguments and yesterday was no different. However, his ideological leanings and past actions on the Court leave no room for reasonable debate about how he'll vote.
2Of course, some are closer to that particular destination than others.
ETA:
The Medicaid arguments are over, and it looks to me like the challenge to the ACA's Medicaid expansion provisions will fail in a big way. The argument from the states is that requiring expansion of Medicaid benefits on pain of losing all existing federal Medicaid funds is an unconstitutionally "coercive" exercise of Congress' spending power. I'd say that most of the justices agree that an unconstitutionally coercive exercise of the spending power can exist, but not a one of 'em (except maybe Thomas) thinks this is it.
Transcripts:
Medicaid (pdf, 102 pages)
Severability (pdf, 100 pages)
Ain't nothin' left to do in the ACA cases 'cept wait for a decision.