If the Supreme Court follows its usual schedule, by the end today nine people will know the fate of the Affordable Care Act and the individual mandate. It will likely be nearly three months before the rest of us know how the Justices voted today.
That said, there can be little doubt that those looking to strike down the individual mandate are heartened by the performance of Paul D. Clement, the attorney representing the state of Florida and the other petitioners. His delivery was more polished compared to Solicitor General Donald Verrilli, who at times during Tuesday's arguments appeared to stumble in his defense of the law.
But observers of the Court say people should not read too much into that. "Much of what people saw was really more a matter of personal style," said Greg Pemberton, head of the healthcare practice and a partner at the law firm Ice Miller in Indianapolis. "Verrilli is famous for not using notes during his arguments and he argued all three days – a Herculean task. From needing to say what needed to be said, he did a fine job. That is in sharp contrast to Clement's presentation – he is well known as a master of sound bites. He had points he wanted to make, he said the words that he wanted to say, whether he was asked the question or not, so in terms of style points he certainly won in that sense."
Others were more effusive in their praise of Clement with Tom Goldstein, of Goldstein & Russell, P.C., and publisher of SCOTUSblog tweeting that "Paul Clement gave the best argument I've ever heard. No real hard questions from the right. Mandate is in trouble."
Much of the attention during the three days of arguments focused on Justice Anthony Kennedy, who is almost universally viewed as holding the one swing vote in what is expected to be a 5-4 split either to uphold the individual mandate or send it packing.
Again, those who oppose the requirement that everyone purchase health insurance, were likely cheered by Kennedy echoing Clement's central argument against the mandate when he asked the Solicitor General "Can you create commerce in order to regulate it?"
The question strikes at the key distinction of the very nature of the individual mandate and Congress' power to regulate commerce in this way. The government's position is that the individual mandate regulates already existing commerce – the purchasing of health insurance as the means of obtaining healthcare. While the Petitioners contend the requirement to purchase the insurance is what creates the commerce in the first place.
So does Kennedy echoing this sentiment provide a glimpse of what he is thinking? That too, is hard to figure.
While the Court provided unprecedented access to recordings of the oral arguments and transcripts, often within minutes of the days session ending, the court of public opinion, which almost seemed to view the three sessions in sporting event terms, should not read too much into which justice said what.
Even Clement, himself, seems to indicate as much.
"I'm a big believer that oral argument makes a difference," Clement said in an article in New York magazine. "But I'm also a big believer that comparably the briefs make even more of a difference."