During dinner, talk turned to the recent federal court decisions variously upholding and striking down the Patient Protection and Affordable Care Act (a.k.a. the health care reform law or ObamaCare) and speculation about whether and how the Supreme Court would eventually decide the case. Given the preponderance of lawyers around the table, the conversation focused on prior Commerce Clause cases as they relate to the individual mandate to purchase health insurance under PPACA.
Not being a lawyer, though, I approach the problem of the Supreme Court's likely disposition of the case somewhat differently. For me, the issue isn't simply identifying the outcome most strongly consistent with prior cases. There is ample reason to believe that a variety of extralegal factors bear on Supreme Court decision-making in general and are likely to influence a ruling on PPACA in particular. Looking at the Court from a political perspective, leads me to think that a 5-4 decision against health care reform is coming.
Here are my considerations in making that prediction.
1. The availability of plausible legal arguments on both sides of the issue. Supporters and opponents of PPACA have both advanced reasonable claims about the constitutionality of the individual mandate to purchase health insurance under the Commerce Clause. Supports claim that PPACA's mandate provisions are protected by well-established case law finding that Congress has broad authority under the Commerce Clause to regulate individual noncommercial behavior that, in the aggregate, may influence interstate commerce. Opponents (generally) concede the reading of prior cases, but argue that PPACA's mandate provisions are somewhat more expansive regulations of individual (non)behavior than those upheld in prior cases and that this marginal increase in intrusiveness crosses, even just barely, a critical line demarcating the boundary between the power to regulate interstate commerce and the power to regulate anything.
Better legal minds than my own can, will, and do disagree about which of these two claims is superior. The relative merits of each, though, are less important to my analysis than the simple fact that both have merit in the first place. The law constrains the Supreme Court only to the extent that the canon of legal doctrine and legal reasoning rule out (more or less) completely ridiculous claims. When the justices face multiple plausible outcomes, that constraint dissolves and the justices are relatively free to choose among the available outcomes on the basis of other criteria.
2. The justices' attitudes. Given multiple, plausible resolutions to a particular case, there is substantial evidence that justices are apt to choose the alternative most consistent with their personal political preferences. I do not know, but I suspect that five justices (Alito, Kennedy, Roberts, Scalia, Thomas) would prefer---as a matter of personal political preferences---that PPACA not be in effect. Faced with the availability of reasonable legal claims that support striking down the law, theses justices' predisposition will be do to so.
3. The separation of powers. The results from the last election make it highly unlikely that a decision vetoing PPACA would be attacked through the elected branches of government by either reenacting similar legislation or undertaking serious court curbing activity. Republican control of the House of Representatives and the relevant filibuster pivot in the Senate mean that the Court is protected for the foreseeable future from serious efforts to undermine the Court's decision or the Court itself. The Supreme Court could strike down PPACA without risking a damaging backlash.
4. Public opinion. The public remains divided over PPACA. For anyone offended by a decision overturning the law, the Court may count on at least one person heartened by the same decision. There is no net loss of short-run political support by making the decision. Moreover, the best evidence available suggests that taking on a high profile decision like this one may ultimately yield a long-run increase in public support for the Court as news of the decision acts as a giant civics lesson for the country, exposing ordinary people to the powerful legitimizing symbols that surround the Court.
5. Anthony Kennedy. This is a bit of Kremlinology, but... We are all motivated by our self-concepts: the pictures of ourselves we carry around in our heads. In general, we want to act like the people we think we are, and, maybe even more importantly, we want to act so that other people sees us like we think we should be seen.
Above and beyond Anthony Kennedy's reasonably mainstream Republican politics, I think his self-concept is nicely summed up by the title of one scholarly analysis of him and his judicial philosophy: The Tie Goes to Freedom. Justice Kennedy sees himself as one of the great defenders of personal freedom in the history of the Supreme Court. So, he has become one of the great defenders of personal freedom in the history of the Supreme Court.
Joining a majority that confirms yet another incremental extension of New Dealism by upholding PPACA is strongly inconsistent with that vision of Justice Kennedy. Leading a majority that draws a line in the sand protecting personal freedom and reviving the idea of judicially enforceable limits on Congress's Commerce Clause powers is precisely consistent with that vision of Justice Kennedy. Being the fifth vote to strike down PPACA, especially if he is also the fifth vote to strike down state prohibitions against same-sex marriages, makes Justice Kennedy the most important and interesting member of the Supreme Court at least since Earl Warren. Combined with (I presume) a preference to let the politics of health care reform in Congress unfold with a stronger Republican voice in the process, Justice Kennedy's pivotal voice seems likely to emerge among the opponents of PPACA
6. Marbles. This Supreme Court has 'em. Contested presidential election? We can handle that. Want to ban corporate money in elections? We don't. How about handguns? Nope. These guys have no compunction about telling the rest of us what the Constitution does and does not allow.
As Chief Justice Rehnquist wrote in U.S. v. Morrison:
No doubt the political branches have a role in interpreting and applying the Constitution, but ever since Marbury this Court has remained the ultimate expositor of the constitutional text. As we emphasized in United States v. Nixon (1974), “[I]n the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others… . Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury … that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ ” Contrary to Justice Souter’s suggestion... [the commerce power is] not exempt... from this cardinal rule of constitutional law. His assertion that... public opinion has been the only restraint on the congressional exercise of the commerce power is true only insofar as it contends that political accountability is and has been the only limit on Congress’ exercise of the commerce power within that power’s outer bounds.If a majority of the justices on the Supreme Court are inclined to strike down PPACA, they will strike down PPACA and let us sort out the rest.