"Could you define the market—everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli," he said at one point.

"To the extent people thought, that based on Raich, and to the extent the questioning is indicative of his views, he had really only skeptical questions of the solicitor general," said Gillian Metzger, a law professor and vice dean at Columbia Law, and former clerk to Justice Ruth Bader Ginsburg.

"And he really did not ask very much at all of the respondents, which would seem to suggest—again, if you rely on the questioning—that he would be in the camp of thinking this is unconstitutional," she said. "That is a change from what people were thinking given his decision in Raich. I think otherwise, the general tenor, in terms of where justices stood, it was all in the range of possibility."

Just how surprised one should be about Scalia's skepticism depends, as with most court-related matters, on how you parse his concurrence in Raich.

Randy Barnett, the libertarian law professor who represented Angel Raich and has aggressively pushed the anti-mandate agenda, wrote a pre-emptive post earlier this month arguing that Scalia's concurrence in that case was hardly controlling here.

Put (too) simply, this view holds that a health care mandate isn't necessary to the regulation of interstate commerce, in the same way that Scalia found the government's ability to police even homemade marijuana was.

Scalia's tone didn't invite the kind of hand-wringing that Kennedy's did, because, unlike Kennedy, he was never seen to be the deciding swing vote. The conventional wisdom was that, if Kennedy voted to uphold, the Scalia who decided Raich might make for a sixth, or perhaps even seventh, vote to affirm the decision.

While that might make little difference to the law's immediate survival, Scalia's opinion has the power to provide something no Kennedy vote ever could: the imprimatur of a bona fide constitutional conservative.

That support would seem to put the mandate on firmer footing for any future challenges, and also give Democratics a powerful antitode to the campaign-season charge that President Obama is riding roughshod over the Constitution.

And it had the power to say something much larger about the court itself: that the justices, even the ones perceived to be most political, are still capable of bucking ideology to decide cases on the merits.

If yesterday was any indication, that hope now rests primarily with Chief Justice John Roberts.

This article is from the archive of our partner The Wire.