SCOTUSblog publisher predicts: The Court will uphold the mandate

posted at 4:01 pm on June 27, 2012 by Allahpundit

This isn’t a tea leaf, really, just his gut feeling. But since I seem to be the only other blogger around who’s still expecting the worst — and that’s only because I’m a terrible, terrible eeyore — let’s spare a moment for the considered judgment of an expert who thinks the conventional wisdom is wrong, wrong, wrong.

But in the end, based on the entire mix of information I have, I think the mandate will not be struck down tomorrow. (I don’t have any inside information, nor does anyone else.) My prediction includes the possibility that there will not be a single majority opinion for the theory on which the mandate is upheld, and even the thin possibility that the Court will not have a majority to find the mandate constitutional.

My level of confidence isn’t overwhelming, but it’s good enough to give a concrete prediction. We’ll see.

I’ve always thought that Kennedy’s point during oral arguments about the government needing to meet a “heavy burden of justification” to impose a mandate would be key to the Court’s opinion. He never suggested that mandates were always and forever impermissible; he implied that they’re constitutionally troubling but might be okay if the feds can show a compelling enough reason why they’re needed. Orin Kerr nailed it at the time: If the statute gets upheld, it’ll be because the Court agreed with the government that the health insurance market is “unique” and that regulating it to provide universal coverage is impossible without a mandate to spread the new costs around. In that case, the “heavy burden” would be met notwithstanding the Court’s grave doubts about other types of mandates. In fact, the only thing I’m really confident about is that tomorrow’s opinion will contain lots and lots of anti-mandate language generally. However they end up ruling on the ObamaCare mandate, they’re almost certainly going to make clear that mandates in the abstract are dubious constitutionally, just so that Congress doesn’t get any funny ideas about building on this precedent. That’ll be the consolation prize if we’re crying in our beer Thursday afternoon.

I owe you a bona fide tea leaf, then. Sean Trende argues that the dreaded 6-3 outcome in favor of the law really doesn’t make much sense:

Some have suggested that the chief justice would vote strategically. The idea is this: He is the last justice to cast his vote during conference. If there were four votes to strike down the law, then he would provide the fifth to do the same. But if five votes had been cast for the law, Roberts would then cast a sixth vote in favor…

Absent Roberts, the most senior justice in a majority to uphold the law — who would presumably assign himself the opinion — would be Kennedy. But Kennedy is actually fairly conservative on federalism issues. He joined the opinion of the court in United States v. Lopez and United States v. Morrison, two critical Commerce Clause cases. Even if he wanted to uphold the health care law in its entirety, it’s unlikely he would write an opinion that would set the stage for overruling those other decisions.

In other words, Roberts doesn’t need to keep the opinion for himself by joining a pro-ObamaCare majority because he can count on Kennedy to write a narrow, generally conservative-ish opinion instead. Fair point, but there are two X factors. One: Given the magnitude of this decision, Roberts may feel obliged as chief justice to author the opinion. This case is likely to be the one, more than any other, for which his Court is remembered. If he’s on the fence about whether to vote yes or no, he might side with the majority in the interest of taking full ownership of it. Two: Roberts may simply be leery of a 5-4 decision in a case as politically radioactive as this one. Trende notes, correctly, that polls show that the public wants to see O-Care struck down, but getting to the right result substantively doesn’t necessarily mean that the public will support how the Court did it procedurally. If the mandate dies 5-4, the left’s media war on the Court will be ferocious; low-information voters will endure days worth’ of commentary on the news about the decision being illegitimate because it was “politicized.” Which is to say, the Court’s prestige could suffer even if it reaches a decision that most people otherwise support on the merits. Maybe Roberts doesn’t care about that — if he’s voting on principle, why should he? — but if he does, then 6-3 to uphold may do more for him prestige-wise than 5-4 to strike down. Especially since erasing the law via repeal under President Romney is available to the public four months from now.

One more tea leaf — a juicy one, from Ed Whelan of Bench Memos:

As I understood it when I was a law clerk for Justice Scalia twenty years ago, there was an etiquette at the Court that any single justice would read a dissent from the bench no more than once each term. I gather that that etiquette is no longer uniformly acknowledged or accepted—Justice Ginsburg, I believe, has read two or more dissents in some terms. But I believe that the public record would show that Scalia has continued to abide by it…

If the Chief Justice were authoring an opinion upholding the individual mandate and if Scalia were dissenting from that holding, Scalia, as the senior justice in dissent, would have the prerogative to assign himself the lead dissent. I don’t see why he would pass over that option. Further, given what seem to be the relative magnitudes of the Obamacare and Arizona immigration cases, I think it highly likely that Scalia would preserve the Obamacare dissent for the one he would read from the bench. Indeed, the fact that his dissent in the Arizona case was a solo dissent (neither Thomas nor Alito joined it) makes it even less likely as a choice.

I’d never heard that before but it’s intriguing. Any Court-watchers out there know if Scalia’s ever read his dissents from the bench more than once per term? My only quibble with Whelan’s reasoning is that the ObamaCare case isn’t business as usual, so I’m not sure why we should expect any justice to follow normal protocol. If I’m not mistaken, most cases get one hour of oral argument before the Supremes. ObamaCare got six hours over the course of three days. Wouldn’t surprise me if every last member of the Court wrote an opinion tomorrow and each insisted on reading a bit from it, just to leave his/her fingerprints on history. If Scalia was ever going to break his once-per-term habit for a dissent, this would be the time.

Update: Whoops. I was looking at an older version of Whelan’s post; he’s since updated it to note that Scalia has, in fact, read another dissent from the bench this term, so the informal “one and done” rule obviously is no longer in effect. No tea leaf there.


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There’s only been 1 poll done here in nearly 2 months, and that was Rasmussen (last week). It had O’bama by 5, with the margin of error being 4.5%. So basically Scott is saying it’s a tie.

But one poll does not an election make.

Del Dolemonte on June 27, 2012 at 7:22 PM

I’m about 30-40 min from Lake Winnipesauke.

Yeah there’s hope after all… this is the first state I’ve ever lived in that has a chance to get red (before it was NY, NJ, RI).

LevinFan on June 27, 2012 at 9:37 PM

Late to the thread so sorry if it has already been discussed, but Alberto Gonzalez agrees with Jazz — that Roberts will punt, essentially on ripeness because the penalties don’t kick in until 2015. If he’s right (and he just fed the media narrative of an “activist court” if they then don’t punt and strike the mandate), I imagine it could be a 6-3 decision, with Scalia, Alito and Thomas dissenting.

If the mandate is not struck, I will swallow hard and vote Romney. Can’t believe I just said that … never in my life did I think I could possibly vote Romney, but there ya go.

Firefly_76 on June 27, 2012 at 9:37 PM

I’d like to beat her eyelids closed (for the first time since the advent of Botox) with that giant gavel.

That woman makes me sick.

Resist We Much on June 27, 2012 at 8:51 PM

Not if I beat you to it!

Stretch Pelosi is actually worse than Maobama!

LevinFan on June 27, 2012 at 9:39 PM

IF the mandate to coerce people and business into signing contracts is upheld, then we will need a new constitutional ammendment affirming 500+ years of contract law.

I do wonder, if contracts are no longer meaningfull, then is the constition anything more than a piece of paper?

Freddy on June 27, 2012 at 9:44 PM

Late to the thread so sorry if it has already been discussed, but Alberto Gonzalez agrees with Jazz — that Roberts will punt, essentially on ripeness because the penalties don’t kick in until 2015. If he’s right (and he just fed the media narrative of an “activist court” if they then don’t punt and strike the mandate), I imagine it could be a 6-3 decision, with Scalia, Alito and Thomas dissenting.

If the mandate is not struck, I will swallow hard and vote Romney. Can’t believe I just said that … never in my life did I think I could possibly vote Romney, but there ya go.

Firefly_76 on June 27, 2012 at 9:37 PM

There’s alot of other reasons to vote for ROmney.. and yes most of them are b/c he’s NOT Maobama!

If you don’t like Fast and Furious and the impeachable cover up

If you don’t like raiding Gibson Guitars

Giving a Medal Freedom to an American hating racist

Throwing Israel under the bus

Pushing out Mubarek for the Muslim Brotherhood

Trying to gut our defense

Civilian trials for terrorists

Solyndra

Porkulus

calling those who stand up for the Constitution “Teabaggers” while praising the Occupy thugs….

Then vote for Romney!!

LevinFan on June 27, 2012 at 9:49 PM

More tea leaves: This fella (via Powerline) thinks the mandate is going down, and Barack knows it’s going down, which is why the White House planted a story in the NYT this weekend that “detailed how the smartest crowd (hasn’t the MSM assured us of it) that has ever inhabited the nation’s Executive Mansion failed ever seriously to consider that seizing control over one-seventh of the American economy and forcing every American to buy a commercial product might, just might, run afoul of our constitution of liberty.”

It’s a good point. The NYT doesn’t write anything about the Obama administration that hasn’t been pre-approved (and in most cases written) by someone from the Obama team. That story clearly has a “let’s try to explain why this wasn’t hubris but just a little ole misunderstanding” tone to it.

It’s also so interesting to me that everyone, literally everyone, believes Kagan has told Obama what the Court’s decision is, yet it hasn’t exploded into a scandal. A commenter at Powerline even pointed out that the White House obviously knew the Arizona decision in advance as they had their papers all ready to sever their enforcement agreement with the state. And, of course, they did have them ready!

Rational Thought on June 27, 2012 at 10:23 PM

It Sure Isn’t The Archangel Gabriel Over The Obama White House

M2RB: The Doors

Cameo appearance by Bayam

Resist We Much on June 27, 2012 at 11:02 PM

I’m sure this has been said before.
But its annoying me like a bug you can’t get off.
Justice Roberts sided with the liberals on the AZ immigration decision.
To me, that says it all.
A closet liberal? Even his previous liberal instructor at Harvard spoke on MSNBC & predicts Roberts will vote in favor of the mandate.
I don’t have the heart to listen to the decision tomorrow, but I will.
Queen Nancy had better freshen up on her botox, cause she’ll be smiling ear to ear.

Belle on June 27, 2012 at 11:21 PM

I’m sure this has been said before.
But its annoying me like a bug you can’t get off.
Justice Roberts sided with the liberals on the AZ immigration decision.
To me, that says it all.
A closet liberal? Even his previous liberal instructor at Harvard spoke on MSNBC & predicts Roberts will vote in favor of the mandate.
I don’t have the heart to listen to the decision tomorrow, but I will.
Queen Nancy had better freshen up on her botox, cause she’ll be smiling ear to ear.

Belle on June 27, 2012 at 11:21 PM

The Constitution is entirely clear that the feds have primacy over the states on immigration law, so he was really siding with very clear language contained in the Constitution. To side with the libs on Obamacare, however, he’ll have to find “authority” in that document that doesn’t exist.

Rational Thought on June 27, 2012 at 11:26 PM

Thanks for the information & hope, RT!

Belle on June 27, 2012 at 11:28 PM

Kennedy IMO is the swing vote here. Two things:1.) this would basically change the relationship between government and the governed and 2.) the lack of a limiting principle. Both emphasized by Kennedy. I also put a lot of stock in Ginsburg’s sharp dissent remarks on severabilty. Also Barry’s original hissy fit was very telling. All in all I think it’s more likely the whole thing is voided.

bluesdoc70 on June 27, 2012 at 11:55 PM

Actually the fact Scalia has already read two dissents this term argues against him being in the minority on this case – do you really think he would do it a THIRD time, when he could easily have left his scathing dissent in the Arizona case to the printed page.

Scotusblog’s coverage of SCOTUS has been very good, but its predictions have in no measure been any more accurate than anyone else’.

Adjoran on June 27, 2012 at 11:57 PM

Wouldn’t you just love to know if Kagan slipped the decision to her buddy, Obama?
Hey, the White House leaks top secrets like a sieve, but not this one!
One thing we all know for sure is how Kagan voted.

Belle on June 28, 2012 at 12:23 AM

Well, it’s the night before…trying to think positively.

http://www.youtube.com/watch?v=wHLGqjoeLS0

Lourdes on June 28, 2012 at 12:28 AM

Scotusblog’s coverage of SCOTUS has been very good, but its predictions have in no measure been any more accurate than anyone else’.

Adjoran on June 27, 2012 at 11:57 PM

This.

Deanna on June 28, 2012 at 12:28 AM

Wouldn’t you just love to know if Kagan slipped the decision to her buddy, Obama?
Hey, the White House leaks top secrets like a sieve, but not this one!
One thing we all know for sure is how Kagan voted.

Belle on June 28, 2012 at 12:23 AM

SCOTUS runs a very tight ship. If Scalia told his wife it would be a scandal.

lexhamfox on June 28, 2012 at 12:54 AM

SCOTUS runs a very tight ship. If Scalia told his wife it would be a scandal.

lexhamfox on June 28, 2012 at 12:54 A

What if he talks in his sleep? I think it’s possible given some of the anger he’s shown lately.

Gladtobehere on June 28, 2012 at 1:00 AM

When this thing goes down in flames, I would love to have a camera and a mic on Pelosi.

kingsjester on June 27, 2012 at 4:31 PM

If ever there was a moment that needs to be frozen in time, that’s going to be it.

Something to include in the “Anti Mount Rushmore” collection.

Lourdes on June 28, 2012 at 1:25 AM

SCOTUS runs a very tight ship.

lexhamfox on June 28, 2012 at 12:54 A

I am sure that they do but in the case of Kagan, there is no way she hasn’t an established method of getting information to-from Obama, by way of other couriers or whatever.

Lourdes on June 28, 2012 at 1:27 AM

Scotusblog’s coverage of SCOTUS has been very good, but its predictions have in no measure been any more accurate than anyone else’.

Adjoran on June 27, 2012 at 11:57 PM

*IF* the guy writing it was reliable, credible, he would NOT BE involved in “predictions”.

Granted, that’s a Liberal behavior, so I think the case is closed on that guy’s orientation.

Lourdes on June 28, 2012 at 1:29 AM

I have to ask this again…

Does everyone really think that NO judicial consideration will be given to the way this bill was passed? It is a nearly 3,000 page monstrosity with authors unknown. It changed and morphed on a daily basis, sometimes behind closed doors in the dead of night, to the point that no one ever really knew which version they were voting on. It was passed by such dubious practices as “deeming”, kickbacks, bribes, back room deals and widespread promises of exemption. It is packed with a rat’s nest of crap that has absolutely nothing to do with health care. For a supposedly “duly passed” piece of legislation, it was never “duly read”, let alone “duly understood.” It’s so-called promise of “not adding a dime” to the deficit is an out-and-out lie based on accounting deception and trickery. The Witch-Speaker of the House cackled that we have to pass the bill to find out what’s in it – and many of the juiciest poison apples won’t take effect until well after future elections.

Honestly, if Roberts really does uphold this bill, I will take to drinking heavily and wait until the Death Panel denies my liver transplant on the basis of both my alcoholism and my conservatism.

Logic on June 27, 2012 at 10:53 AM

Logic on June 28, 2012 at 6:34 AM

Fair warning to Progs:

In the event the individual mandate is upheld because healthcare is a “unique” market that has an “inordinate” impact on the nation’s economy, please be advised that I shall forthwith beginning lobbying Congress and every other elected official (and unelected apparatchik) to pass laws requiring all individuals and businesses to insure against financial “illness” and its “catastrophic effects, including personal bankruptcy and effects on the nation’s economy.” Thus, all persons owing money to any financial institution that is insured by the Federal government, including insurance companies pursuant to former Senator Chris Dodd’s amendment to the FDICIA of 1991, will be forced to insure against default.

Want to buy a home and need a mortgage? You will henceforth be mandated by the Federal government to carry mortgage insurance until your mortgage is paid off regardless of your credit history, credit rating, net worth, and employment history.

Want to finance an automobile? You will henceforth be mandated by the Federal government to carry loan insurance until your loan is paid off regardless of your credit history, credit rating, net worth, and employment history.

Want to have a credit card? You will henceforth be mandated by the Federal government to carry default insurance for as long as your account is open regardless of your credit history, credit rating, net worth, and employment history.

After all, we have seen the catastrophic effects of foreclosures and other credit defaults on the economy.

Oh, and there will be no exceptions under the Community Reinvestment Act.

XOXOXO

Resist We Much on June 28, 2012 at 7:33 AM

If the mandate is not struck, I will swallow hard and vote Romney. Can’t believe I just said that … never in my life did I think I could possibly vote Romney, but there ya go.

Firefly_76 on June 27, 2012 at 9:37 PM

So, if the mandate is struck down, you’re voting Obama?

Well, ….that makes……

sense……

?……

98ZJUSMC on June 28, 2012 at 8:13 AM

Does everyone really think that NO judicial consideration will be given to the way this bill was passed?

I would like to think that that would matter. However…..

Hell, if Donald Duck and A. Hitler can vote in Minnesota, I reckon they can write legislation, too.

98ZJUSMC on June 28, 2012 at 8:16 AM

After we watched the Supreme Court Justices SHRED this administration’s case for the mandate and basically MOCK the weak defense and incompetence of the Federal Government’s Attorney, it would be extremely hard to swallow a decision then upholding the mandate they made so much fun of during the proceedings. After Obama’s THREAT against them, how they should not dare challenge/overturn his Legacy piece of legislation, it would be seen as the S.C. crumbling and cow-towing to ‘The supreme Leader’. a majority of credibility the S.C. holds would be lost.

easyt65 on June 28, 2012 at 8:51 AM

The way the bill was passed has no bearing on the Constitutionality of the mandate. if the S.C. goes directly by what is being challenged, the Constitutionality of the Mandate, no consideration should be given to how it was passed. As ugly as the hypocrisy, lies, closed-door sessions, unsavory vote-buying/special deals, etc that went on, nothing technically ‘illegal’ went on – it was just plain ol’ dirty, unethical politics as usual., which is not an issue in question in this case (UNFORTUNATELY)!

This entire administration and that same unethical, behind-closed-door, deal-cutting, d@mn-near (if not)criminal politics that rammed not only Obamacare but record setting deficit-spending and $5+ Trillion in new debt in 3 years is not on trial before the Supreme Court but rather on trial before the U.S. American Citizen/Voter Court of Opinion. Do not look for the Supreme court to do YOUR job for YOU! It is YOUR job, not theirs, to pass sentence on those who engage in this behavior, who drag our nation and its citizens behind them, & YOUR jobs to carry out the punishment, which SHOULD be to vote their sorry A$$E$ out of office instead of rewarding them for this behavior by voting the Party Line every election!

easyt65 on June 28, 2012 at 8:59 AM

Late in predictor, but I predict bad news. And part of my gloomy prediction I have to admit is based on the chest-thumping assurance of commentators like Sean Hannity (I can’t even listen to his radio show anymore and the TV one depending on the guests).

Pride goeth before a fall and all that.

I hope I am wrong, but I hoped I was wrong about MItt Romney being a strong candidate. Looks like I was right about that one too. I actually like him better these days, BUT he’s losing the election and sure enough, he’s more negatively passionate about Newt Gingrich and Rick Santorum than he is about Barack Obama, the nice guy. We are doomed, and I’m having daydreams about splitting the country in half so we can somehow retain our freedom and not become the banana republic I predicted we’d be (I was right there, too).

Portia46 on June 28, 2012 at 9:39 AM

The Supreme Court ruled the Obamacare Mandate to be UnConstitutional…..then Roberts & his Socialist Cohorts, utilizing powers/authority they DO NOT HAVE, changed the government’s argument for them, declaring the mandate to be a tax (something the Obama lawyer argued against – that the mandate was NOT a tax) in order to save Obamacare.

Unbelievable!

easyt65 on June 28, 2012 at 11:55 AM

easyt65 on June 28, 2012 at 11:55 AM

Wrong, go read oral arguements again.

damian1967 on June 28, 2012 at 12:47 PM

Left was threatening to reconstitute the court in some way. Well, we have a hopelessly politicized court – how can the right reconstitute the court?

aigle on June 28, 2012 at 2:14 PM

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