Most promisingly, at times both Kennedy and Roberts—the two justices that the administration must persuade to rule in the mandate’s favor—appeared to echo Verrilli’s argument. Justice Kennedy warned both Clement and Carvin that the uninsured “are creating a risk that the market must account for.” In a similar vein, Roberts reminded Carvin that “the government’s position is that almost everybody is going to enter the health care market” on their own.
Minutes from the end of the session, Kennedy observed that, contrary to Carvin’s claim that the uninsured were irrelevant to the cost-shifting problem, “the uninsured young person is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.” When Kennedy added, “That’s my concern in this case,” Carvin blurted warily, “I may be misunderstanding you, Justice Kennedy. I hope I’m not.” And with good reason. Kennedy here appeared to indicate that this “concern” was his own, and not merely an Obama administration argument.
For his part, Verrilli used his concluding four minutes of rebuttal to deftly exploit this opening.
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