I was listening to the repeat of the audio last night on C-SPAN and was somewhat surprised to hear even the more leftie judges (Ginsburg and Kagan, e.g.) making fun of the government’s case re the “Anti-Injunction Act” of 1875 (or whatever) which states that the supremes can’t hear a case on tax constitutionality until the “tax” actually takes effect (which for Dumb0Care isn’t until 2014).
The gubmint lawyers were trying to argue that the “mandate” is a tax for Injunction-Act purposes even though the legislation itself doesn’t call it a tax. Then they tried to argue it was a “penalty” (for not buying insurance) and then ended up calling it a “tax-penalty” which cracked up most of the supremes.
Considering that Sotomayor wrote most of the Admin legal opinion on it (before being nominated) I’d consider her a definite lock for the bad guys, but now I’m not so sure about the others.
The Supreme Court's five conservative justices challenged the Obama administration's arguments for the health-care law, with Justice Anthony Kennedy saying the government has a "very heavy burden of justification" for a requirement that people carry health insurance or pay a penalty.