I figured I'd expand an update from my previous post into a more developed discussion about the tidal wave of insufferable speculation we are about to endure over the next 70 hours or so. As I wrote, the hotly-anticipated Obamacare ruling will be handed down on Thursday morning. Based on the pattern and seniority of the justices who have authored majority opinions so far this term, many long-time Court watchers are nearly certain that Chief Justice John Roberts will exercise his prerogative to write the healthcare landmark decision. (Point of clarification: the Chief Justice is automatically considered the "most senior" jurist on the bench, even if he or she hasn't served the longest). Ed Morrissey, speaking for many, opines that this (yet unconfirmed) development "sounds like a big loss for the White House." Ed is hardly alone in embracing that calculus:
RT @PhilipAKlein: Ex-SCOTUS clerk Sen. Lee tells me if Roberts is writing decision it is "substantially" more likely mandate is toast.
With all due deference to the estimable junior Senator from Utah, everyone needs to slow down. Of course it's possible that Roberts, a Bush appointee, will take the lead in striking down Obamacare's individual mandate -- or maybe even the entire law. It's also entirely conceivable that if a majority voted to uphold the law in private, Roberts decided to assert his leadership by writing the decision himself. In doing so, he would take additional ownership of "The Roberts Court," and could manage the newly-established precedent as he sees fit. This could mean trying to "limit the damage," so to speak, perhaps by attempting to offer some concrete limiting principles that would help prevent future Congresses from abusing the expanded interstate commerce precedent. I can imagine a scenrio in which Roberts writes a 5-4 opinion invalidating Obamacare and/or the mandate, but I can similarly envision him leading a 6-3 majority to uphold. My point is that if Roberts is indeed the author of the Obamacare ruling, that fact alone offers zero dispositive proof of anything at all. If you're yearning for a dose of optimism, go back and read Phil Klein's analysis of Roberts' contributions to the oral arguments over the individual mandate:
Those who say that Roberts' vote is in play point out that he asked critical questions to both sides. But a closer look reveals that when he was badgering President Obama's solicitor general Donald Verrilli, he was speaking for himself, but when pressing lawyers opposing the law -- Paul Clement and Mike Carvin -- he created distance from the position by noting he was articulating the position of the government. There are a number of examples of him forcefully challenging the Obama administration's key arguments, using such phrases as "it seems to me" ... He continued on that point to say, "what I'm concerned about is, once we accept the principle that everybody is in this market, I don't see why Congress's power is limited to regulating the method of payment...as it does in any other area. What other area have we said Congress can regulate this market but only with respect to prices, but only with respect to means of travel? No. Once you're -- once you're in the interstate commerce and can regulate it, pretty much all bets are off."
On the other hand, as I also pointed out earlier, oral arguments Are. Not. Predictive. For instance, the general consensus of seasoned Court observers after the Arizona v United States exchange wrapped up was that the federal government's case was in trouble, and that Arizona was poised to win big. Today's complex outcome was in no way an unambiguous victory for Arizona, even though the law's "stop and check" element was upheld 8-0 (at least for now). So trying to mine transcriptsof the Obamacare hearings for clues may help pass the time, but make no mistake: *Every single* prediction you hear between now and Thursday morning is pure and unadulterated conjecture. With that in mind, here's your first helping of pessmistic speculation: Real Clear Politics' sharp analyst, Sean Trende, suggests the caustic tone of Justice Scalia's decision in the Arizona case might be something of a tell. Trende tweets that a former Scalia clerk has pointed out the pattern that sometimes the justice tips his hand about other major forthcoming decisions by venting frustration in advance. He offers this 2000 case as an example. Recall that the nine justices typically vote on cases shortly after oral arguments, so Scalia almost certainly knew how Obamacare would shake out when he wrote his Arizona dissent (beginning on page 30). He vehemently objects to several of the majority's findings, which he argues further undermine the sovereignty of indivdual states -- which is one of the main legal issues being weighed in the healthcare case. Trende openly concedes that this is "thin gruel," but that doesn't mean it's necessarily wrong. Perhaps Scalia preemptively expressing contempt for his colleagues who have formed a legal consensus to validate Obamacare. Or perhaps I'm falling into the trap of latching on to any remotely plausible theory in order to try to prepare for what may be coming. It's going to be a long three days.
Something of the kind may also have been in the mind of Chief Justice John Roberts, usually part of the conservative bloc. In a highly unusual move, Roberts joined Kennedy on the liberal side in the immigration case despite the dissenting votes of Justices Antonin Scalia, Clarence Thomas and Samuel Alito. We might read this as a sign that Roberts, too, was hoping to bring Kennedy to his side in the health-care decision. A few years ago, when Kennedy was a necessary fifth vote for extending his corpus rights to prisoners in Guantánamo, then- Justice Stevens joined Kennedy and the conservatives in an important case about treaty interpretation. Many observers interpreted his vote as a gesture toward Justice Kennedy.
Three more days of this. Over to you, Tom Petty:
"The waiting is the hardest part."
UPDATE III - Health policy wonk Avik Roy is a braver man than I. He's issuing a specific prediction:
These comments by Roberts indicate to me that the most likely scenario is what I’ve predicted for months: that the Court will strike down the individual mandate and all of Title I, which contains the law’s reordering of the private insurance market. On the other hand, the Court is likely to let the rest of the law stand. There’s an outside shot that the Court will strike down Title II, which contains the law’s dramatic expansion of Medicaid, but I’d say the chances are under 10 percent.
UPDATE IV - Is arch-liberal Ruth Bader Ginsburg writing the dissent? Hmmm...