It’s “Kennedy’s Call:” Oh, Brother!

Well, turns out the Wall Street Journal‘s live blog of the oral arguments before the Supreme Court on the constitutionality of the individual mandate may have created an excessively optimistic impression, in my mind at least. Most experts now weighing in are suggesting deep trouble for the administration, though some may simply be surprised that the issue isn’t a slam dunk, or think Solicitor General Donald Verrilli had a really bad outing (terrible timing, if true).

Jeffrey Toobin was the most categorically negative, saying in a live report for CNN that if he had to guess, he thinks the Court will probably strike down the mandate.

SCOTUSBlog’s Lyle Denniston was less negative about the outcome, but more certain about how the decision would likely be made: by the Court’s weathervane, Justice Anthony Kennedy.

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

Perhaps tomorrow’s hearing, on the “severability” of the mandate from the rest of the ACA, and on the constitutionality of its Medicaid provisions, will generate some new hints, but probably not. We’re in for a long wait–probably until June or July–with a truly momentous decision in very serious doubt, and the ever-erratic Kennedy in charge. That’s just great.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.