This week the Supreme Court survived six hours of oral argument spanning four distinct issues related to the landmark Patient Protection and Affordable Care Act. On Friday, the Justices will convene for conference and for the first time reveal to each other which way they are leaning on the issues. By the end of June, all the haggling will be over and the Court will be ready to issue their decision.
I do not think—and the oral argument Monday seems to confirm—that the Justices will throw out the case on justiciability grounds. Everybody appears anxious to have a decision sooner rather than later. Since the Court took the case, they are going to want to rule on the major issues.
There are five votes of which we can be certain.
Justice Thomas will vote to strike the law. He will not buy the argument that the law is a tax, as this would be a way for Congress to forever make an end-run around any limitation on their power. His view of the Commerce Clause is based on an interpretation that pre-dates the New Deal. In most cases that involve the Commerce Clause he goes out of his way to write, in my view, outlandish and extreme opinions (most notably his concurrence in U.S. v. Lopez).
Justices Ginsburg, Breyer, Sotomayor, and Kagan will vote to uphold the law. The “liberal” block of the Court will be applying precedent that has been the rule for the past seventy years and was recently affirmed in a 2005 opinion, Gonzalez v. Raich. They will conclude that Congress acted rationally and reasonably to regulate the health care market, which substantially affects interstate commerce.
Given that backdrop, let's start making predictions on the four toss-ups. They are Chief Justice Roberts and Justices Scalia, Kennedy and Alito.
Of this group, Justice Kennedy has been the justice most likely to side with the “liberal” block to give them a majority in the past. In Raich he voted with them to uphold the Controlled Substances Act. He has not written many opinions on the issue of the Commerce Clause, so it is difficult to know with certainty what is most important to him. Many of his decisions on major cases appear to be driven by assessing trends in public opinion. But given how divided the country is over the ACA this does not really help us. In several of his decisions he also discusses fundamental rights and liberties, of which he has a fairly expansive interpretation.
My prediction is that Kennedy will vote to uphold the law, because the underlying goal, improved access to health care for all, is something that he could construe as a fundamental right.
If Justice Kennedy sides with Justices Ginsburg, Breyer, Sotomayor and Kagan, I see both Chief Justice Roberts and Alito also siding with the majority. During their confirmation hearings they both said they were opposed to any “activist” court decisions. Voting to strike down this law, which would exact a large political price on supporters, would be the embodiment of an activist judge. They would be flouting years of precedent and putting the Court directly into the middle of the controversy. This would also allow the Chief Justice to assign the opinion to himself and construct a ruling narrower in scope.
Then there is the wild card: Justice Scalia. He voted to strike down laws regarding violence against women and guns around schools as being too attenuated from the Commerce Clause. But in 2005 he did not vote to strike down the Controlled Substances Act in Raich. Instead he wrote, “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”
This would seem to be a statement very favorable to those defending the ACA. Another consideration: in early March I attended a lecture by Justice Scalia at Wesleyan University. He lamented how quickly litigants run to court when Congress or the government does something they disapprove of, instead of using the legislative or political process to reverse it themselves.
So add it all up, that is eight votes upholding ACA and only one striking it down.