The first 90 minutes of the oral arguments in the Supreme Court's review of Obamacare are over and court watchers are already identifying the justices who look eager to rule on the merits of the case instead of throwing it out on a technicality. The technicality in this case is the Anti-Injunction Act. which prohibits citizens from challenging taxes in court before they actually go into effect. (Since health care reform's individual mandate hasn't gone into effect, some lawyers say the law can't be challenged until 2015.) But Antonin Scalia, Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan appeared ready to blow past the technicality while other justices such as John Roberts and Anthony Kennedy were less outspoken.
The justices have consistently resisted efforts to televise their hearings but you can listen to the audio here. In our attempt to give you the next best thing, these are the justices court experts say appeared skeptical of the Anti-Injunction Act today and appear eager to weigh the case on its merits.
Antonin Scalia Right out of the gates, Scalia threw a wet rag on the act, saying the individual mandage has never clearly been identified as a tax in the health care law. In the actual language of the Affordable Care Act, the mandate is described as a backstop penalty, not a revenue-raising mechanism. “I find it hard to think that this is clear.” He added that for the bill to be considered a tax, the law must come right out and describe it as such. "We had a principle that ousters of jurisdiction are ... narrowly construed."
Stephen Breyer Jumping on the bandwagon, Breyer made a similar point to Scalia's, saying “Congress has nowhere used the word tax. What it says is penalty" to describe the individual mandate. He added, “It’s collected in the same manner as a tax. But that doesn’t automatically make it a tax.” Getting into specifics about the Affordable Care Act, he said the bill “doesn’t use the word tax once, except as a collection device.”