The Scalia broccoli argument may have been one of the worst philosophical arguments I've ever heard. The really sad part was how voraciously the news picked up on it, and asked the question "Sure its a bad argument, but can the government make you buy broccoli?" Instead of just tearing it to shreds like they should have. If that's the best Scalia can come up with after months of consideration, that tells you how philosophically strong the argument in favor of the law is.

That said, I'm an optimist with respect to my feeling about how the court will rule. I think the conservative justices asked tough questions that betrayed their conservative bent, because they're philosophically opposed to health coverage and didn't want to be seen to be openly defending it. However, there is a much larger issue that the Court is deciding that goes well beyond health care and the particulars of this law. That is, what is Congress' role in regulating this type of commerce?

Its been pointed out by several people that The Broccoli Man himself may be the deciding vote in favor of the mandate. This is based on the fact that he has tended to side with Congress often in his career. He may despise universal health care, but he needs to make a choice between the ability of the government to regulate the commerce between states, and one singular issue that he might find distasteful. Until I see otherwise, I'm putting my money on the former.

There is one more interesting caveat in the politics of the Court itself. The Chief Justice reportedly has an extreme dislike of 5-4 decisions. There was a story on NPR (that I can't find right now) about how his court, although farther to the right than any court in history, has a remarkable number of unanimous or 8-1 decisions (with Thomas usually dissenting). It just happens to be that they almost always rule 5-4 in very controversial (politically charged) cases, so that is what the majority of us hear about. But, he must be aware of the abuse he took in the media and with the public at large over Citizens United. Even the President called him out in the State of the Union, which was unprecedented. So I think he has a legacy to consider. I think we can safely assume that the four liberal justices will vote in favor, and that Thomas probably slept through the proceedings, but that his activist wife already told him everything he needs to know to rule against it. Alito is extremely conservative, so lets out him as a "Nay". If Scalia is on the fence, or is in favor of upholding, my guess is Roberts will vote to uphold, as well. That will leave a very surprising 7-2 or 8-1 victory in favor of ACA. This Court is viewed with such contempt and such skepticism by so many Americans, that I don't think Roberts wants to fuel the fire anymore. It might be wishful, but I can see it happening.