Sizing Up the Court on Health Care Ruling


A quick Google search Monday evening of the four words of the day — "Supreme Court" and "health care" — revealed more than 1,800 news articles. I glanced at a handful to gain some perspective on what follows the not-too-surprising announcement that the Court will listen to arguments (likely next March) and issue a ruling (likely in June) on the constitutionality of the individual mandate portion (among other things) of the federal health care reform law.

Here are a few different facts and notes:

  • It’s been more than 600 days since President Obama signed the Patient Protection and Affordable Care Act of 2010. It’s only 215 days until the expected end of the Supreme Court’s spring term.
  • Stuart Taylor, Jr. of the Brookings Institution writes that the Court’s allocation of five hours of time for arguments is "extraordinary" and the "most time in many decades for related challenges to a single new law."
  • Taylor also notes that none of the justices recused themselves from hearing the case. There had been suggestions that Justice Elena Kagan (Obama’s former solicitor general) or Justice Clarence Thomas (whose wife has been politically active in opposing the law) might take that step.
  • Andrew Cohen, chief legal analyst for CBS News, offers 1-9 odds that Justice Anthony Kennedy "will be in the majority no matter which way the Court rules … and that both supporters and detractors of the Act likely can’t win without his vote."

Congressional Quarterly, in the business of interpreting what goes on in Washington each day, offered this analysis of the political implications and the possibility that a ruling may not be a decision after all:

A ruling, four months before Election Day, that the mandate is constitutional would provide a significant and perfectly timed boost to Obama and congressional Democrats — because it would enshrine for the ages their top shared domestic policy achievement. A ruling that strikes it down would grant the GOP nominee-in-waiting, and congressional Republican candidates, their No. 1 campaign season wish — because it would validate all of their vituperative derisions of “Obamacare” as an unconstitutional overreach.

The main reason the justices would take one side or the other is that the regional federal appeals courts have been split on the core question of whether the mandate is within Congress’ power to regulate interstate commerce. (Two have upheld the law, a third has found it unconstitutional and a fourth has ruled it’s too soon to say.) And a main function of the Supreme Court is to make consistent judicial policy when the lower courts disagree. But it’s also true (Bush v. Gore aside) that (Chief Justice John) Roberts and the other conservatives who are the majority on the court have said over and over again that the judicial branch should generally look for ways to stay out of white-hot political disputes — and also should defer, if at all possible, to the will of the elected branches of government when it comes to policy disputes.

And so the easiest way to find five votes between now and June might be for one of those conservatives (the chief justice, Scalia, Thomas, Alito and that big maybe, Kennedy) to shop the view among his colleagues that it’s too soon to decide the constitutional question yet — because the mandate hasn’t actually taken effect and so no one has been “harmed” by having to pay a penalty for not obeying.

What does it all mean? The analysis will be sure to continue over the next 200-plus days until a decision has been made. Then a new round will begin on the implications of that decision. I’ll guess it’s a 5-4 ruling in favor of … how do I know? No one has ever confused me with a Supreme Court justice.

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