>> but justice stephen breyer said the part of the law not tied to the insurance mandate which is much bigger, includes hundreds of new rules that could be saved. >> here's the rest of it, you know, and when i look through the rest of it, i have all kinds of stuff in there. so what do you propose that we do other than spend a year reading all of this and have you argue over it? >> and the court's liberals said it should be up to congress, not the supreme court, to decide what else to keep. >> what's wrong with leaving it to in the hands of people who should be fixing this, not us? >> why shouldn't 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. >> the best hope for the obama administration would be this, that the justices would find it so hard to decide what to throw out and what to keep that they simply let the entire law stand. but tonight, that seems a dim prospect, brian. >> pete williams from the court, thanks. >>> once again here with us

general daniel verrilli seemed to trip up over penalties and taxes, as he did here with justice stephen breyer. >> if they pay the tax, they are e with the law. >> why do you keep saying tax? >> if they pay the tax penalty, they are in compliance with the law. >> tom: darren joins us now. microphone as lawed in the high court but no video camerasment darren, does this all boil down to an argue over a tax which is used to a fund a government versus what i want to call a penalty which would be an economic punishment? >> it does. because they want to make sure that basically, you know, if you are unhappy with your tax, you are not going to sue the supreme court. you're to the going to end up in the supreme court. this is their way to kind of narrow the exemption to this law that is designed to protect our tax system. >> tom: so we can call it a penalty hear and if we do that does the court seem inclined with what you heard today to rule that they don't have to wait until 2014 to decide the fate? >> this is their march madness. i really thought that they were going for it they really seemed to thi

. >> reporter: justin stephen breyer says if suits were brought every time a new tax was passed thered be no end to lawsuits in sight. >> taxes are for better or for worse the life blood of government and so what congress is trying to do is to say there's a procedure you go through. >> reporter: the arguments continue on tuesday. the decision is not expected until possibly june right in the middle of the presidential election. even though these arguments were held today we're not really expecting a decision in this case till the end of this term. that's going to be june and that's also going to put that right smack dab in the middle of a presidential campaign. >> oh, boy. what was it like in court today? >> fascinating because here you have both the united states government and the people who are against this law essentially on the same side, but, you know, heading into tuesday, that's going to be the big argument, laura. that's the argument over the healthcare mandate. can the government orbed citizens to purchase a service -- orbed citizens to purchase a service like -- order citize

i mean, stephen breyer and ruth bader ginsburg, both nominated by bill clinton, both nominees very muchin the mainstream of kind of centrist democratic thought at that time, the mid '90s, were confirmed within weeks by huge margins. and so if a president chooses to play down the middle, i thought or my observation told me, confirmation was going to be a piece of cake. well, that stopped happening in the last two nominations. we had sonya sonia sotomayor, te wonderful personal story and a person of high achievement, 17 years as a federal judge, i think more federal judicial experience, i believe, than just about anybody else ever nominated to the supreme court. and, you know, what happened in her confirmation hearing? of course, she was confirmed, so at the end of the day it was a happy story for her. but all that garbage about one speech she had made and the wise la latina remark. you probably remember this. kind of wrenched out of context of what actually had been a speech that was very thoughtful and heartfelt, not a sound bite. you know, opposition research that turns up something li

the tone of questioning from several justices, including stephen breyer, suggested they believed so. since the two sides both oppose the tax designation, the court appointed a washington private attorney, robert long, to argue in favor. >> why is this a tax? and i know you point to certain sentences that talk about taxes within the code. and this is not a... attached to a tax. this is attached to a health care requirement. why does it fall within that word? >> well, i mean, the first point is our initial submission is you don't have to determine that this is a tax in order to find that the anti-injunction act applies because congress very specifically said that it shall be assessed and collected in the same manner as a tax. even if it's a tax penalty and not a tax. that's one argument. >> that doesn't mean the a.i.a.applies. >> reporter: the hearings have set the stage for a new round of debate in the court of public opinion. >> this is a teaching moment. >> reporter: supporters like ron pollack of families usa kicked off a three-day blitz by bringing doctors and nurses to the steps

. >> these are the cases in justice stephen breyer's office that were granted and heard in the courtroom. behind the scenes, each justice has their own suite of offices. here they work with the staff of four law clerks and several office assistants. but it is within their own chambers where their personalities and work habits come through. >> i like to be in a quiet place. i like to have my law clerk close at hand. in my regular chambers, all of the law clerks were inside chambers. now i have two that are in that office and two down the hall, but i like a quiet place. i'm glad to be overlooking the courtyard and not in front of the building so i'm not disturbed by demonstrators. this desk is made here at the court. all of the chambers have similar desks. the variation in these chambers is that i have put a granite top on the desk. >> i was very lucky to have this office. it was harry black monday's office. he was my predecessor here. it was a lovely office. the year before ruth bader ginsberg was appointed, everybody moved and you get the office by seniority. i was the junior and no one

yesterday in that courtroom justice stephen breyer showed just what that could mean as he held up this section and says, this is the section that requires us to buy health insurance. and this is the rest of this massive law. if we strike down this, what are we going to do about the rest of it? >> the argument that's made in the -- >> reporter: the arguments wednesday showed what was at stake. not just the requirement to buy health care but the entire health care law. the conservatives and moderate swing justice anthony kennedy suggested if the mandate was gone, the whole thing should be scrapped. >> when have we ever really struck down what was the main purpose of the act and left the rest in effect? >> reporter: the typically blunt justice scalia suggested it would be better if congress started with a clean slate instead of the court deciding which of the law's other provisions could stand. and he joked that reading the 2700-page law would violate a constitutional amendment, cruel and unusual punishment. >> what happened to the eighth amendment? you really want us to go through these

and it was interesting, the person who really took on that question most enthusiasticcally was stephen breyerok over the defense of the law from donald verrilli and said look it's up to congress to define the limiting principle. we have political checks. if jack reed's constituents think he's doing a bad job and thinks he's overstating they'll throw him out of office but it's not the supreme court's job to decide what the limits of what congress should do are, and frankly, i thought that was a lot more persuasive than anything donald verrilli said in defense of the law. >> let me ask the question of senate reed. say hypothetically this in fact is struck down. can the bill live without the mandate? that's kind of the direction we're heading now. what happens next? >> i don't assume that's the direction we're heading. i think -- >> i meant in terms of the conversation, not in terms of whether or not it would be struck down, sir. >> again, i think that, i feel that the law will be sustained. i think jeff said it very well, that these judges probably have a pretty good sense of what they're doing

the four liberals on the court, stephen breyer, ruth bader ginsburg and elena kagan tried to defend the law. 3 asked sympathetic questions of verrilli, challenging questions of clement and mike carvin. they did not look like they had a fifth vote in that courtroom. and you know, it takes five votes to win and look likes the conservatives have them. >> kate, you were inside the courtroom, the solicitor general donald verrilli, was he sort of stumbling, did he not have the right answers? did he seem unprepared and overly nervous in responding to the conservative justices' tough questioning? >> it's hard to get into his mind but i can say if you compare it to yesterday, he did -- he did appear to stumble more, almost seemed apologetic for some of the answers he was giving. there was a stark difference from his delivery yesterday as to compared to today. and jeff was talking about the conservative justices really going after and asking him tough questions. barely letting him finish his sentence before they piped in. looking over my notes as we wait for the audio. justice kennedy asking clea