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.