JONATHAN COHN MARCH 19, 2012
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Las Vegas hasn’t posted odds on whether the Supreme Court will reject health care reform. But the American Bar Association has done the next best thing. As part of a special publication devoted to the case, the ABA surveyed a group of veteran observers and asked them to predict the outcome. The results? Eighty-five percent predicted that the court will uphold the law.
The ABA won’t say how it picked the experts; it promised anonymity to guarantee candor. So make of the results what you will. But those experts seem to part of a broader consensus. In conversations over the last year, the legal experts I know have also predicted that the court would uphold the law: Most seem think the odds are about two to one, or something close to it. Intrade seems to agree.
But more interesting than the top-line numbers from the survey are the predictions of how individual justices will vote. The experts ABA surveyed were unanimous in predicting that the four liberal justices (Stephen Breyer, Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg) would vote to uphold and that Clarence Thomas would vote to strike it down. Fifty-three percent said Anthony Kennedy would join the liberals, but a higher proportion, 69 percent, thought Chief Justice John Roberts would join the majority. Majorities of about 60 percent predicted that the other two conservatives, Samuel Alito and Antonin Scalia, would determine the law is unconstitutional.
Why would experts think Roberts more likely to uphold than Kennedy? I really have no idea, although I’ve pinged a few law professors to see if they have theories. (Readers with legal knowledge should feel free to speculate in the comments.) The best I can offer is this: Given the near certainty that all four liberal judges will vote to uphold, a vote to strike down the law, even in part, would have to be five-to-four and it would have to break down along party lines. Maybe they think Roberts doesn't want to go there, at least for a cause—limiting the commerce and “necessary and proper” powers—that's not a particular passion of his. (One informed legal observer suggested to me that Roberts is far more interested in rolling back the Voting Rights Act, as he's already started to do.)
A more carefully reasoned explanation for why the law seems likely (although far from certain) to survive comes from Richard Primus, a former Ginsburg clerk who is now a professor of law at the University of Michigan. And it's an interesting explanation, if you're following this case, because the source of Primus' relative confidence is the very case that gives so many of the law's defenders anxiety: United States v. Lopez.
The subject of Lopez was a federal law banning gun possession near schools. The government cited its right to regulate interstate commerce as justification for the law. A five-to-four majority rejected that argument, saying that states could handle the matter on their own. In so doing, the majority, led by Chief Justice William Rehnquist, established a limit on the commerce clause power—something the court had not done since the New Deal. Critics of the Affordable Care Act hope (and advocates of the law fear) that the court’s willingness to limit the government’s interstate commerce power in that cause mean it might do the same in this one.
Writing in the Michigan Law Review, Primus takes a different view. He wonders whether Lopez might end up saving the Affordable Care Act. He starts by calling the Affordable Care Act an “easy case” on the merits: “Under existing doctrine, the provision is valid as can be.” Still, he acknowledges, the justices believe in the idea that the federal government has only the powers enumerated in the Constitution. They would be hesitant to write a decision that appeared to allow for the possibility of boundless federal power.
That's where Lopez might come in handy. To simplify Primus' argument a bit, he thinks Lopez could put the justices' minds at ease. Having already established that the power to regulate interstate commerce has limits, Primus suggests, they might not feel compelled to do so again. What’s more, the Lopez decision led to subsequent decisions—most important among them, Gonzales v. Raich—in which the court specified with more detail the limits of the commerce power. And the health care mandate falls clearly within them.
In other words, Lopez signaled a willingness to roll ball federal regulatory economic authority, something that hadn't existed since the New Deal. But, in this particular case, Lopez might make the justices more comfortable upholding the law.
I’m well into the weeds of legal theory now, I realize, and a bit out of my depth. But if you care about this stuff, read the Primus aricle. And maybe keep an eye on Intrade.
follow me on twitter @CitizenCohn
15 comments
Good reporting.
- Nusholtz
March 20, 2012 at 7:09am
My pithy argument is essentially the same as Primus's scholarly argument but with a twist: Roberts (pulling a Marshall) will uphold the mandate but provide a more restrictive limit (than in previous decisions since the New Deal) on the scope of the commerce clause that will vitiate much of ACA (e.g., the federal minimum standard for health insurance). Marshall was Jefferson's nemesis; Roberts will be Obama's.
- rayward
March 20, 2012 at 7:33am
rayward, if that were true, couldn't No Child Left Behind be declared unconstitutional?
- timteeter
March 20, 2012 at 8:09am
I am hoping for a punt due to lack of standing. If Obama gets re elected he can go to the Republicans and offer a tax and credit system and get rid of the mandate. If Republicans still say no they will show that the mandate is not the issue and the court itself would then have to ape the partisanship of the Republicans, and if Republicans say yes, then the issue goes away. And if Romney wins the ACA will be gutted. I think the Conservatives on the court have a much better chance to win this by punting (a 2/3rd chance)
- blackton
March 20, 2012 at 8:36am
Kennedy is more likely to strike down the ACA (the individual mandate provision at least) than Roberts because Kennedy is the closest thing the Court has to a libertarian. His opinion striking down Texas' sodomy law in Lawrence v. Texas is basically a libertarian argument. Thomas will vote against the ACA because he has a restricted view of the Commerce Clause. Kennedy could vote against the ACA because he has an expansive view of personal liberty.
- cmrooney01
March 20, 2012 at 8:47am
Chief Justice Marshall understood that the Court is a political institution, and that the Court's decisions, especially in close and important constitutional cases, are political decisions. In Marshall's legacy, Marbury v. Madison, Marshall gave Jefferson his "victory" by denying Marbury (an Adams' appointee) his commission, but gave Jefferson a much worse defeat by establishing the doctrine of judicial review. Roberts, who fully understands the political nature of the Court's role, notwithstanding his claim during confirmation hearings that judges are merely umpires calling balls and strikes, will side with the majority and vote to uphold the mandate and ACA and appoint himself (the prerogative of the Chief) as the author of the majority opinion, which will allow him the discretion of writing an opinion narrowing the scope of the commerce clause. In doing so, Roberts will please everybody, upholding the mandate and ACA, but narrowing the power (under the commerce clause) of the federal government. It will be Roberts' legacy; and it's just as Marshall intended.
- rayward
March 20, 2012 at 9:13am
My own theory is that the Justices are more concerned with their own salaries than anything else, (see almost every annual report from the Chief Justice and Justice Roberts's 2006 report where he states that he will address no other issue than judges salaries need to be raised). If the overarching political issue is whether government shall serve to solve our problems or whether government shall serve only to solve its own problems, then striking the ACA is a step in the direction of cutting all sorts of spending, including no increases in compensation for the federal judiciary. On this basis, I expect it to be upheld.
- Nusholtz
March 20, 2012 at 9:33am
Great reporting, and good to shine the spotlight on a couple of important dynamics in the ACA cases as they involve the Chief Justice. The part about Roberts' judicial passions is usually underestimated in reporting about the case, but it is of paramount importance. Roberts (and Alito) are of a generation of conservative lawyers who came of age in the late 1970s and early 1980s and gained their major government legal experience in the Reagan Justice Department. The Interstate Commerce Clause and the limits of Congress's power thereunder were less than afterthoughts to that generation of conservative lawyers -- instead, the notion that Congress can regulate interstate commerce at will was generally taken as a given and the argument about the proper scope of the Interstate Commerce Clause was (with one interesting exception) limited to the libertarian margins of legal scholarship. The main issues that exercised the Reagan Justice department were the scope of Presidential power versus Congress (especially the rollback of post-Watergate era restrictions on that power); environmental regulatory powers; the Voting Rights Act and civil rights laws generally, such as Federal court involvement in local school desegregation; affirmative action; abortion; and Federal campaign finance regulation. Most of those issues have been taken up by the Roberts court in one form or another and, under the Chief Justice's guidance, have produced some major changes in established law. But the path to decisions such as Citizens United has been paved with a steady and methodical approach to undermining the basis of unfavored decisions, rather than a sudden pronouncement that reflected the passions of the current Republican electorate. In this sense, deciding to abandon the established understanding of the Interstate Commerce Clause and to strike down the individual mandate on the basis of arguments that were fringe in conservative legal circles five years ago is not the Roberts way. Mentioning Lopez is also a good thing, since it brings up the one exception to the general conservative deference to the Interstate Commerce Clause during the 1970s and 1980s -- opposition to the Federalization of generic criminal conduct. One of the last dissents in an Interstate Commerce Clause case was that of Justice Potter Stewart (Sandra Day O'Connor's predecessor) in the 1971 case of United States v. Perez, which involved a Federal statute that criminalized loan sharking activities. Stewart objected to the creation of Federal criminal statutes soley on the basis of purported effect on Interstate Commerce, arguing that criminal law has historically been a state matter and that Federal criminal laws should be limited to issues affecting the interests of the Federal government rather than criminal matters that may somehow affect commerce. The Perez dissent planted a seed for the Lopez majority 20 years later, as Rehnquist and O'Connor used it to revive the view that Congress cannot Federalize criminal conduct by simply invoking the Interstate Commerce Clause. This trend was extended in the Morrison case, which struck down part of the Violence Against Women Act on the basis of unwarranted Federalization of criminal acts -- though it came to an abrupt stop with Gonzales v. Raich, when the Court had to confront the intersection of Federal criminal law based on the Commerce Clause with an activity (the growing of marijuana) that was already the subject of existing Federal commercial (and criminal) laws. There were two underlying rationates for the Lopez line of decisions -- a desire by Supreme Court Justices who had significant experience in state legislatures (Rehnquist and O'Connor) to re-assert the right of states to regulate conduct that had generally been left to state control, such as criminal law; and a desire to limit the case load on Federal courts, thereby preserving their viability and ability to expeditiously adjudicate disputes. Neither of those rationales is in place with the ACA appeal, which is a straightforward attack on the Interstate Commerce Clause that hearkens back to the New Deal. A historically minded judge -- such as Roberts -- will be well served to recall the difficulties that Federal courts encountered during the 60 years preceding Wickard in distinguishing between Federal statutes that legitimately affected "commerce between the several states" and those that allegedly did not -- cases involving things such as antitrust laws, the Pure Food and Drug Act, restrictions on child labor and alcohol distribution and the creation of the NLRB. That is another reason for why the Roberts Court will, in my opinion, decide that legal challenges to the individual mandate are too much of a departure from legal precedent and too fast of an assault on the citadel of Federal powers. Such a decision would be profoundly conservative -- in the best sense of the word.
- wildboy
March 20, 2012 at 10:17am
cmrooney, I do agree with you that Kennedy will be the one. But as a woman, the idea that Kennedy is a libertarian strikes me as very offbase. However much I distrust the far right ideolouges on this court, I will say that none of them have ever had the gall to take away rights I have over my own body while proclaiming that we women are just too dizzy to ever really grasp what's going on. So therefore we need wise men like him to think for us. He's positively Orwellian.
- WandreyCer
March 20, 2012 at 11:21am
I also agree that this is great reporting and thank you for the terrific post wildboy.
- WandreyCer
March 20, 2012 at 11:24am
I'm not quite sure how Roberts could vote to uphold the mandate while writing an opinion narrowing the scope of the commerce clause. Such an opinion would be unnecessary to uphold the mandate, and thus would be what we call "dicta," mere judicial commentary having no precedential value. In any event, I agree that Roberts is likely to vote to uphold the ACA. In fact, I predict that the Court will find the matter is in fact ripe for judicial review, and will uphold the ACA 8-1, with only Thomas dissenting. I do not think the Court is as baldly political as some here think it to be. The justices may have political/ideological leanings or agendas, but they are smart enough to pursue those agendas in ways that are at least colorably justifiable under existing precedent. They are smart enough to recognize that what is being challenged here is penalty imposed on taxpayers who do not purchase health insurance, and that the penalty is not a regulation of "inactivity," but a regulation of the activity of consuming medical care. And they will recognize the illegitmacy of refusing to consider whether the penalty is authorized under the taxing power simply because Congress did not call it a tax. Dhurtado
- NR143296
March 20, 2012 at 10:20pm
cmrooney makes a good point about Kennedy. But even libertarians recognize the principle that "your right to swing your fists ends at my nose". The sodomy case involved a right which, when exercised, didn't really harm others (Rick Santorum would disagree I suppose). In the case of health insurance, the "liberty" the law's critics are defending is the right to forego insurance, get sick, and stick the rest of us with the bill. Emergency rooms are required to treat patients regardless of insurance. Thus a libertarian may reasonably say "your right to go without insurance ends at my pocketbook".
- bjones
March 20, 2012 at 10:36pm
But, bjones, if the libertarian says "your right to forego insurance ends at my pocketbook," wouldn't the libertarian support a tax on persons who forego insurance.? Surely so, unless the position is that one who foregoes insurance must be left to die on the ER doorstep. Dhurtado
- NR143296
March 20, 2012 at 10:46pm
Stanford Law student here. More compelling than the fact that the Court has already succeeded in recently limiting Congress's commerce power is the fact that Rehnquist's Lopez framework (used in Morrison and Raich) doctrinally supports Congress' power to regulate the activities involved in the ACA. (In the pertinent parts, Lopez allows Congress to regulate intrastate commercial activities that substantially affect interstate commerce in the aggregate, as well as intrastate non-commercial activities if they are necessary to effectuate a broader regulatory scheme). It's unlikely that the Court throws out the framework. Rather, Conservatives' best argument relies on drawing an obtuse formalist distinction b/w decisions that constitute "action" and "inaction." This type of analysis has no bearing on the Lopez framework, and hasn't even been a consideration in commerce clause doctrine since the very early 20th century. Judges generally don't rule in this way anymore, and it would be odd for them to do so here at the expense of the kind of clearly delineated rule that conservative Justices prefer, especially. (For a good takedown of the "action/inaction" argument, see Judge Sutton's concurrence in the 6th Cir. decision on the law from this July [Thomas Moore Law Center v. Obama]).
- ASSIEFF
March 20, 2012 at 11:58pm
Dhurtado, I think that was bjones' point, that libertarians should be supportive of the penalty (and probably would be if it wasn't a kenyan-in-chief running things).
- GSpinks
March 21, 2012 at 3:47pm