The appellate decisions have done little to calm the partisan passions aroused by the healthcare law. Not since the 1930s has the Supreme Court faced such a distinctly partisan challenge over national regulation. The court's four liberals, all Democratic appointees, will almost certainly uphold the law. The outcome depends on its five Republican appointees, conservatives who cherish the idea that the Constitution puts limits on federal power that the court is duty-bound to enforce.
Addressing them directly, former Solicitor Gen. Paul D. Clement, the lead lawyer for the states, argues that the law, if put into full effect, would usher in a "brave new world" of Washington-driven healthcare. Only the Supreme Court can call a halt, he says, and preserve the idea of a limited federal government.
But the recent opinions by Silberman, Sutton and Kavanaugh also offer a caution to the high court, said Simon Lazarus, counsel for the National Senior Citizens Law Center.
"These are eminent conservatives, very smart, and they believe in judicial restraint," he said. "Their message to the court is: Handle this case as judicial conservatives, not as libertarian radicals or political activists."