Kennedy among the justices, asking skeptical questions about the mandate

[The Velveteen Ocelot]

2. You should never make assumptions about the outcome

based on a judge's questions during an oral argument. I was a law clerk for a state supreme court, and it was very rare that it was possible to tell how the case was going to come out just based on the questions the justices were asking. Often, what seemed like hostile questioning was merely the judge's way of determining if there were weaknesses in a particular position. The way it works, generally speaking, is this (in most appellate courts, including the Supremes): The attorneys file written briefs. The law clerk(s) review the briefs and write a memorandum describing the parties' positions and what the current law says about those positions. Then there are the oral arguments, where the attorneys can elaborate on their briefs and the judges have a chance to test their arguments. After that the justices confer and decide how they want to rule, and one of them is assigned to write the opinion.

The fact that one Justice was asking critical questions means very little at this point. Don't start digging the grave just yet.