• With: James Taranto, Dan Henninger, Joe Rago, Megan Cox Gurdon

    This is a rush transcript from "Journal Editorial Report," March 31, 2012. This copy may not be in its final form and may be updated.

    PAUL GIGOT, HOST: This week on the "Journal Editorial Report," the waiting game begins as the Supreme Court justices decide the fate of Obama- care. We have all the highlights from this week's historic oral argument.

    Plus, the political implications if the individual mandate falls, and what it would mean for America's health care system?

    All of that, and the phenomenon of the "Hunger Games." It's a box office smash. But should your kids be seeing it?

    Welcome to the "Journal Editorial Report." I'm Paul Gigot.

    After a historic three days of oral argument, the fate of President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act is now in the hands of the nine Supreme Court justices.

    Here with a look at the highs and lows of the week's proceedings, Wall Street Journal columnist and deputy editor, Dan Henninger, editorial board member, Joe Rago; and opinionjournal.com editor, James Taranto.

    So, momentous week at the court, fascinating week. Before the week, the conventional wisdom in the legal establishment was, this is an easy call, the law is going to be upheld. At the end of the week, you could almost feel the shift during the course of the week and, at the end, even the left was saying, you know, there's a very good chance that part or all of this law could go down.

    JAMES TARANTO, OPINIONJOURNAL.COM EDITOR: Yes, and the big news was Justice Anthony Kennedy. Unlike the liberal justices, who left no doubt where they stood, or Justice Scalia, who was also comically injudicious. He was comically injudicious. Look how many times it says "laughter" in the transcript. Justice Kennedy did not signal how he would vote. But he made it very clear he's taking seriously the arguments of the states, who are the plaintiffs in the case. Both the argument that the individual mandate, that you have to buy insurance, is unconstitutional, it exceeds Congress's legitimate power, and the argument that if the individual mandate falls, the best remedy is to strike down the entire law.

    GIGOT: Let's here the first, on the individual mandate, an exert from Justice Kennedy.

    (BEGIN VIDEO CLIP)

    ANTHONY KENNEDY, U.S. SUPREME COURT JUSTICE. He the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases --

    UNIDENTIFIED MALE: Well.

    KENNEDY: -- that changes the relationship with the federal government to the individual, in a very fundamental way.

    (END VIDEO CLIP)

    GIGOT: Dan, the core principle in Anthony Kennedy's jurisprudence is liberty. That is individual liberty. You've seen it in gay rights cases, but you also see in this tension -- he talks about the separation of powers. If one part of government, the federal government, doesn't get too large or too powerful, you protect individual liberty with a tension between state power and federal power. That's really a central issue in this case, isn't it?

    DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Well, there's no question about it. And the government's case denies that it involves any of that sort of thing, which is one of the reasons they were having such difficulty making their argument. As Chief Justice Roberts pointed out at one point, there are -- the federal government has enumerated powers. Which is to say, they are listed. We know what they are. And they are limited. And the -- the question that they kept putting to the government's lawyers is, in what way is this extension of the Commerce Clause not exceeding those enumerated powers. And because they deny that it has anything to do with any sort of extraordinary extension of the Commerce Clause, he was unable to talk about that subject. And I think that's the reason he sort of looked foolish throughout the day's argument.

    GIGOT: You mean the solicitor general?

    HENNINGER: The solicitor general was not able to talk to the central issue that Kennedy was putting to him.

    GIGOT: But Kennedy did leave open, Joe, the possibility that Justice Kennedy could find a limited principle in a relationship with the young people, to the larger health insurance market.

    JOE RAGO, EDITORIAL BOARD MEMBER: Right, saying, at some point, you'll consume health care, therefore, we can mandate that you buy insurance. The problem is that really isn't a limiting principle. And you say that health care leads to health insurance, all sorts of things lead through health care, you know, whether it's healthy decisions, life choices. So, it's really another way of stating the police powers that -- and the separation--

    GIGOT: The separation of states.

    RAGO: The separation of the states and the federal government that's at the core of this jurisprudence.

    GIGOT: How big a hole is there for Justice Kennedy to walk through if he wants to uphold this mandate?

    TARANTO: Not a very big hole, it seems to me. I mean, he would have to define it very narrowly and explain why the health insurance business is different from all other businesses, different so that the federal government can order people to buy something. All right, in prefacing that comment that Joe just quoted, Kennedy said, well, they say that this market is unique. Of course, they'll say that about the next market that comes before us.

    GIGOT: All right, let's take up another issue, which is, if the mandate goes down, then how much of the rest of the law needs to fall.

    Let's listen to Justice Ginsburg.

    (BEGIN VIDEO CLIP)

    RUTH BADER GINSBURG, U.S. SUPREME COURT JUSTICE: There's a question of whether we say everything you did was no good, and now start from scratch or to say, yes, there are many things that have nothing to do, frankly, with the affordable health care. And there are some that maybe it's better to let Congress to decide whether it wants them in or out. So why should we say it's a choice between a wrecking operation, which is what you are requesting, or a salvage job, and the more conservative approach would be salvage rather than throwing out everything.

    (END VIDEO CLIP)

    GIGOT: Dan, a salvage job. That's what she's undertaking here? Is she implying that the individual mandate's already gone and trying to save the rest of the law?

    HENNINGER: They obviously are trying to save the rest of the law. And Justice Scalia got one of his biggest laugh when he said, doesn't the Eighth Amendment come into play here when --

    (CROSSTALK)

    GIGOT: Cruel and unusual punishment.

    HENNINGER: Cruel and unusual punishment.

    (LAUGHTER)

    But --

    GIGOT: Because the justices would have to sort through all 2700 pages and say, well, that stays, that goes, that stays, that goes. That would be a big undertaking.

    HENNINGER: Yes. And it gets to the nature of the law itself. Judge Vincent, on one of the lower court rulings, said it was not severable. I think that Judge Vincent may be the only one that read all 2,700 pages. Seriously. Because once you do that, you see that this thing is like just the most incomprehensible complex piece of legislation. And for somebody to -- like Justice Ginsburg to start describing which of these endless parts you're going to save is kind of a fool's errand.