Why Jeffrey Toobin Is Wrong About the Supreme Court and Obamacare

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Instant punditry insisted that health reform was doomed. But Justices Roberts and Kennedy's questions actually suggest the opposite.

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Justices Scalia, Roberts, and Kennedy listen to Solicitor General Donald Verrilli. Reuters

"This was a train wreck for the Obama administration. This law looks like it's going to be struck down." And with that hyperbolic instant reaction, CNN legal analyst Jeffrey Toobin prejudiced media coverage of the Supreme Court arguments on the constitutionality of Obamacare. But reading the entire transcript carefully, I wondered if I was reading the same thing Toobin witnessed inside the court.

To be sure, the conservative justices posed a few hypotheticals, the gist of which were: What makes health care different? Why can the government make you buy health insurance, but not broccoli or cars? But that was to be expected. Judges often play devil's advocate to test the strength of competing positions. What would have been truly shocking is if the justices had not probed for a limiting principle, since it's become a standard line of questioning.    

Consider the arguments before the D.C. Circuit Court of Appeals. Judge Laurence Silberman, who was appointed to the bench by President Reagan, posed a hypothetical too: Can the government make you buy a car? And the questioning that day prompted the headline "Appeals Court Raises Concern Over Health Law." But ultimately Judge Silberman, like six other federal appeals court judges, upheld the law.    

By the end of the arguments before the Supreme Court, it was clear that Chief Justice Roberts and Justice Kennedy understood why health care is unique. To wit: the uninsured affect costs in a way that doesn't happen in other markets. Kennedy pointed out that the uninsured "are in the market in the sense that they are creating a risk that the market must account for."  

Later, Kennedy stipulated this truth: that "the young person who is uninsured 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." To which he added, "That's my concern in the case."  

What's more, the uninsured consume billions of dollars of health care every year -- which amounts to substantial commerce. Roberts made this point very clearly: "Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it."

At another point, Michael Carvin, a lawyer opposing Obamacare, argued that the individual mandate would create commerce, rather than regulate commerce that already exists. But Roberts stepped in: "I don't think you're addressing their main point, which is that they are not creating commerce in health care. It's already there, and we are all going to need some kind of health care; most of us will at some point."    

While the hypothetical questions were not news, here was news: Roberts and Kennedy, the frequent swing vote, in effect restating the government's argument as their own. But how did major news outlets treat this news?  

Among the top 10 biggest newspapers by circulation, only two -- The Washington Post and The Dallas Morning News -- included one of these quotes from the two justices in their headline news stories. The rest either barely alluded to these statements or didn't refer to them at all.

Toobin's alarmist comment certainly got him a lot of attention. But did it inform the public? Sadly, it underscored the pitfalls of Twitter journalism, which often prizes being first and loud over being thoughtful. If Kennedy and Roberts tune out the media and focus on their own words, the "train wreck" will not become a self-fulfilling prophecy.  

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Topher Spiro is the managing director for health policy at the Center for American Progress.

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