This Is It: Last Thoughts Before SCOTUS Speaks on Healthcare

Kate Hicks

6/28/2012 6:30:00 AM - Kate Hicks

Today's the day: the Supreme Court is mere hours away from issuing its most consequential ruling since Roe v. Wade. The Affordable Care Act is on the chopping block, so to get the blood flowing, here's a rundown of some popular theories for how the whole thing will play out. And for heaven's sake, if you don't have SCOTUSBlog open in the next tab, by all means, click here and join the madness.

First things first, there's very little doubt that Chief Justice John Roberts will author the Court's opinion. Given his hostile questioning during oral proceedings, there's certainly an indication that this means the opinion will swing 5-4 against the mandate. Don't get too excited, though: this doesn't totally ensure the law is history. Indeed, some speculate that his position as CJ means he might side with the liberal wing of the Court so that he can exercise his prerogative to author the opinion, thereby narrowing its scope. If that were the case, although the law would be upheld 6-3, Roberts would have the opportunity to tailor the outcome in a manner he found somewhat palatable.

On the other hand, RealClearPolitics' analyst Sean Trende presents a case for why the CJ wouldn't feel the need to supersede the most senior justice on the liberal side:

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, Kennedy would likely keep the Court's opinion within bounds acceptable to Roberts; but of course, Kennedy already authored a major opinion for a controversial case this term, with Arizona on Monday. It's highly unlikely he'd also take on healthcare, too. Thus, if Trende's observation holds true, conservatives are warranted some cautious hope about the healthcare ruling -- emphasis, of course, on cautious.

Trende has another observation, which I haven't seen elsewhere, regarding how the decision will go based on Justice Scalia's dissenting Arizona opinion. This time, however, he doesn't see the outcome favoring the conservative position:

In 2000, a co-worker of mine who had clerked for Scalia pointed to this gratuitous concurrence in NFTC v. Crosby as a sign of future losses for conservatives. Sure enough, bad losses followed in the partial-birth abortion decision and a major school prayer case.

Since then, I have noticed that Scalia’s opinions do, in fact, become more caustic when things aren’t going well for conservatives. So it seems noteworthy that his scathing dissent in Arizona v. United States dwelled at length on the erosion of state sovereignty, which is really at the core of the conservative argument against the individual mandate. Is this a sign of his frustration with the way things are going on the health care law?

Now, that sentence I bolded gave me pause. Indeed, Scalia's dissent was a blistering defense of federalism, and that is one of the major issues at hand in the healthcare cases, but less so for the mandate than for the Medicaid issue. Federalism takes a backseat to the commerce power in regards to the mandate. But recall, the final question the Court addressed pertained to whether Medicaid expansion constituted impermissible coersion of the states.

The conservative position -- to which Scalia undoubtedly subscribes -- would hold that it does. The chance that Medicaid would come down for conservatives was slim from the outset, anyway. Perhaps I'm overly optimistic, but I'm more inclined to believe that Scalia's withering dissent, and its central theme, hints at how the that issue shook out, rather than the mandate.

As for the ruling itself, my favorite theory predicts a split ruling, 2-3-4, against the mandate, but not the whole law. How does this work? Jennifer Haberkorn at POLITICO has a succinct breakdown:

The three most conservative justices could argue that the whole law should come down with the mandate. The four liberal justices could say that the whole remainder of the law should remain in place. And two justices could say that the mandate and insurance reforms should fall. In that case, the four justices would have the most votes, but they wouldn’t have a majority.

So the coalition of three and two justices would essentially combine, and the least common denominator — striking the mandate and insurance reforms — would be the law of the land.

This fits with the character of each justice. There's no question that the liberals will all vote in favor of keeping everything -- anything less would be, frankly, mindblowing. The five more conservative justices, however, differ in scale. Alito, Thomas, and Scalia trend farther right than either Roberts or Kennedy. Roberts made a point in his confirmation hearings of emphasizing judicial restraint. Kennedy made frequent mention during argument of his ambivalence toward putting words in Congress' mouth and throwing out the whole law if they meant for some of it to stay. Both men, however, were highly critical of the mandate, and if the CJ is to write the opinion -- and the theory that he wouldn't overrule Kennedy on the matter holds -- then it seems likely that the mandate will fall.

No matter the mostly-baseless speculation, however, whatever ruling the Court issues tomorrow will undoubtedly have far-reaching effects on the scope of Congress' power, the entire medical industry, and of course, the election this November. Stay tuned for further coverage as the ruling comes down...