Though I preferred a single-payer solution to healthcare reform, I acknowledge that President Obama's bill is the next-best thing (or at least third best...or...OK, well, at least better than the status quo ante). I was therefore dismayed to read both of his chosen champion's clumsy handling of these arguments and the obtuseness demonstrated by some of the questions posed to him.
If the Obama administration takes a utilitarian approach to its arguments, it deserves to lose. The Supreme Court is about means, not ends: it was never intended to be the arbiter of fairness and equality as ends unto themselves, but rather of constitutionality as a means. It is therefore pointless - indeed, counterproductive - to take the approach that the healthcare reform bill should be upheld because it is fair, because it prevents those without insurance from shifting costs to those of us who do have it (which is what happens every time an uninsured person is treated in the emergency room and the costs find their way into my premiums). The Constitution does not mandate fairness: it provides a framework (a means) to control how power is shared among the stakeholders in our society, and distributes that power among those stakeholders (i.e. the people, the states and the three branches of government).
Among the powers deemed fit for Congress to wield is the power to regulate interstate commerce. As the arguments have shown, the essential question boils down to this: is this an existing interstate market that Congress may regulate, or does the act of mandating coverage itself create a new market that must then be regulated (thus making this a case of Congress bootstrapping its way to an overreach)? To convince the Justices that this is an existing market in need of regulation, the government must stop talking about fairness to the insured, needs driving universal healthcare, etc. (in other words, the ends).; rather, they must home in on the fact that this is indeed an existing market in need of regulation (with Congress employing constitutional means). The focus should therefore be solely on the fact that every human being is from birth a consumer within this existing marketplace, one whose interstate characteristics make it subject to Congressional regulation.
Of course, making these arguments means not getting distracted by all the red herrings the conservative Justices are trying to throw into these proceedings. Having clearly (and unethically) made up their minds before proceedings even started, they are desperate to distract from what should be a clear case of Congress regulating an existing market. We have thus seen slippery slope antics that, among other things, suggest we could eventually be forced to buy everything from broccoli to funeral insurances. But there are clear differences here. You can go your whole life without buying broccoli and still be healthy and still not shift costs to others within an existing market that is in need of regulation. And while death is inevitable, the current requirement that states must bury their dead if no one comes forward, does not create distortions within private interstate markets; it just creates burdens for state and local authorities to meet hygiene and safety standards.
The other red herring is the 'should' v 'can' argument: a lot of people are arguing that Congress shouldn't be regulating this arena, forgetting that the Justices must rule solely on whether Congress can constitutionally do so. It goes back to ends v means. People of good conscience can disagree whether it is wise of Congress to take this step, and conservatives will say it is not. If the Justices thus act as political conservatives - and all indications are that a majority will do exactly that - then they will vote to strike down health care reform because they believe Congress shouldn't be regulating here. That would be conservative judicial activism. But if they do their jobs and stick to the means - is it constitutionally allowable for Congress to regulate here - then they must vote in favor of the administration.
But since this is mostly the same set of conservatives who bleated about States' Rights one moment then the next moment mandated a state to stop counting votes and make George Bush president in 2000, I am guessing it is too much for them to stick to principles. The conservatives on the court are exactly what Supreme Court Justices shouldn't be: politicians with an agenda.