Even before the three days of health care reform arguments in front of the U.S. Supreme Court were complete, court observers were wildly speculating how the judges would rule based on their questioning of the attorneys aruging for each side.
Most of the scrutiny fell upon Justice Anthony Kennedy, widely believed to be the key vote in the upcoming decision. On the court, which is made up of five conservative justices and four liberals, Kennedy is viewed as the most likely conservative to side with the liberal justices and uphold the individual mandate—the key tenet of the health care reform law that has come under so much scrutiny.
Rustin Silverstein, managing director of legal crisis communications at Hamilton Place Strategies, says even though much of the initial argument coverage made note of Kennedy's pointed questioning, it doesn't necessarily reveal how he will vote.
"The questioning may or may not be indicative, although it certainly seemed like he was looking for some kind of way to allow this to be upheld without opening the floodgates to many more mandates down the road in other markets and other avenues," Silverstein says. "I think that would be his concern, as a fundamentally mainstream conservative judge, I think that's kind of what his thoughts are."
From the moment the court agreed to take the case, legal scholars and political observers have hypothesized that Kennedy, Justice Antonin Scalia—a staunch conservative—and Chief Justice John Roberts, also a conservative, could join the liberal justices in upholding the mandate.
Many of those hopes were dashed by the reception U.S. Solicitor General, Donald Verrilli, who represented the Obama administration in defense of the law, received in the chambers throughout the three days of testimony this week.
But again, Silverstein cautions against surface level speculation.
"Every attorney who has argued before judges will tell you that the questions are not necessarily reflective of how they are ultimately going to rule," he says. "We won't know until the decision comes out. Perhaps they are inclined to uphold it but wanted to try their best arguments against it on the solicitor general to see what he had to say."
The public – and media – are not used to hearing Supreme Court cases, which could also lead to misleading coverage, Silverstein adds.
"It's unusual, we don't get to hear the Supreme Court that often, so those rare times we do, we'll view it through the lens of a congressional debate or a presidential debate, where people say what they believe, and that may not necessarily be what's going on here," he says.
One thing that's not likely to happen is Roberts siding with the liberal justices in a 5-4 decision, Silverstein says.
"Unless he can get like a Kennedy or Scalia to go with him, I don't see him being the fifth and deciding vote with the liberals, especially on a case like this," he says.
Roberts has said he is striving to build broader majorities in the court's decisions, but so far has failed, Silverstein says.
"Most court observers will say, as much as the justices argue 'We don't pay attention to public opinion,' after Bush v. Gore or Citizens United or some of these other things, that there is a question of credibility on the court, that it doesn't want to be seen as just another partisan institution in town," he says. "But if you look at the first few years of [Roberts'] decisions, it's really been aggressively going after longstanding precedent."
In reality, Roberts could be "more of a conservative activist than maybe people realize," says Silverstein.
With the oral arguments completed Wednesday, the court is expected to hand down a ruling in the case at the end of June.