The big day has finally arrived and all eyes and ears will be on the United States Supreme Court. This is certainly the biggest and most momentous case they have had since Bush v. Gore in 2000. It should come as no surprise that this writer lives and breathes Supreme Court decisions and dynamics, reading everything written about the Court and its members, every opinion and dissent, following cases working their way towards the Court, researching the implications of even the most mundane cases, and listening to the audio of all arguments while reading along to the transcripts of those oral arguments. Part of my interest is based upon my interest in the United States Constitution, undoubtedly instilled in me by a very good civics teacher in 7th grade. Its unfortunate that, as ex-Justice Sandra Day O’Connor has noted, civics education has taken the greatest hit in school, crowded out all in pursuit of teaching to the test while chasing NCLB dollars.
First, there was never a doubt that these decisions would be released on the last day of the Court’s 2011 term. Given the magnitude of the decision and the relatively late-in-the-term argument of the case, that was a given. Some speculate that because it will come down on the last day of the Court’s term, that it must necessarily be a close decision and that internal wrangling held up the opinion. But to understand, one needs to know a little about the process.
Generally speaking, most Justices have an inkling of where they will rule on any particular case BEFORE oral argument. Most of their reasoning is based upon the briefs presented by both sides. Sometimes, oral argument is used to clarify points in these briefs or to challenge the legal reasoning presented in a brief. Some believe that the number of amicus (“friend-of-the-court”) briefs sway Justices. They don’t. They will often cite something from an amicus brief to back up a legal/constitutional point, but just because there are more amicus briefs on one side of the issue rather than the other has no bearing in determining an outcome.
In the conference after oral argument, a preliminary vote is taken to see which way the case will be decided. Here, the Friday after three days of oral argument, votes were taken. There is no “time to digest” period. The Justices voice their opinions/votes in reverse order of seniority with Roberts going last. From everything I have read, Roberts tries to keep the debate limited, as did Rehnquist. Burger and Warren, by contrast, permitted more debate in conference. Once the vote is tallied, the Chief Justice, if in the majority, will assign a Justice to write the opinion. The most senior Justice in the minority will assign the writing of the dissent. Opinions are then circulated among the Justices and are modified along the way. Someone may not like the wording, or the rationale used. It has happened, but is rare, however sometimes a Justice will actually change their mind and jump ship. From certain sources, I have read where O’Connor sometimes became so disenchanted with Scalia’s opinions, she actually switched sides and shifted the decision the other way.
People, mainly liberals, are quick to point out that Clarence Thomas never asks a question during oral argument. That is his personal philosophy. But, if you have ever read any opinion of his, they are highly principled and consistent. Because he asks no questions, liberals portray him as “stupid.” He isn’t. Also, many originally believed he was a protege of Scalia when in fact the opposite may be true. Incidentally, Thomas is to the right of Scalia, if such could be possible.
The three wild cards as concerns Obamacare are Chief Justice John Roberts and Justices Sonia Sotomayor and Anthony Kennedy. As regards the mandate question, Kagan, Ginsburg and Breyer will vote to uphold it while Thomas, Scalia and Alito will vote to strike it down. That is a given. Some pundits have speculated that Roberts and especially Kennedy will vote to strike the mandate down based upon questioning during oral arguments. However, one should not be so quick to read too much into these questions any more than they should read more into the Scalia broccoli hypothetical. Incidentally, that line of questioning, while probing the limits of the power of Congress under the Commerce Clause, used a typical liberal strategy: reducing the argument to the absurd.
As everyone should be aware, there are actually four cases involved here. The first questions whether the tax treatment in Obamacare is, in fact, a tax or a penalty. If a tax, then parties are enjoined from court action under the Anti-Injunction Act. That act prohibits parties from suing to stop a tax from being assessed or collected. Once it is, then there is a “harm” and parties have standing to sue. If a tax, then this whole thing would have to replayed in 2014 since that would be the first time the tax would be assessed for failure to have health insurance. Both the petitioners and the government dropped this argument early on at the appellate level. However, Roberts resurrected the issue and since neither side argued that it was not a tax, the Court appointed a Special Master to argue the case before the Court. Despite a noble job, it is doubtful they will rule it a tax. But, I personally questioned then as I question now why Roberts would even take up this question. Personally, I believe he did so as a political fail safe where they could just push the issue down the road. In the end, I would be real surprised if the decision is anything less than unanimous that these provisions are penalties, not a tax, and that the remainder of the issues can be addressed.
Regarding the Medicaid expansion aspect of the case, I believe the government will prevail here. Granted, the federal government is dictating to states how to spend Medicaid funds, but as Kagan and Sotomayor noted, the federal government is providing the bulk of the funds for the expansion. I can see even Alito agreeing with the government/Obama here. Hence, a 7-2 decision upholding the power of the federal government to attach strings to federal dollars (Scalia and Thomas in dissent arguing a federalism issue).
As to the severability question, this gets a little more dicey. It is not the role of the Supreme Court to parse through a 2,000 page law and pick the good parts and the bad parts. Even Scalia sacrcastically acknowledged this point during oral argument. And just because a severability clause is not included does not automatically mean they will rule that severability does not attach. There are other cases where such a clause was not included and certain aspects of legislation were struck down while leaving the bulk of the law intact. Simply, the Supreme Court does not decide policy decisions or political questions. Most likely, a 6-3 decision here with Scalia, Thomas and Alito in dissent and a small victory/ face-saver for Obama and cover for Republicans.
Which brings us to the mandate. Our de facto Moron-In-Chief, Nancy Pelosi, predicted a 6-3 decision upholding the mandate. I disagree. Once again with the caveat that questioning during oral argument is not necessarily a guide, I am nevertheless left with the impression that Kennedy will vote to strike down the mandate. It was not so much the questioning, but the general tone of his voice where he was really striving to accept the government’s view that the mandate was permissible under the Commerce Clause, but Verrilli’s stumbles didn’t help that argument. He seemed seriously concerned about some limiting principle to the Commerce Clause lest that part of the Constitution become, for all intents and purposes, moot. If the government can force people to enter commerce in order to regulate them, then there is no limit to their powers under the Commerce Clause. And Kennedy has a libertarian streak in him that may lead him to strike down the mandate. Roberts would then provide the fifth vote to strike down the mandate, although at times his questioning was also striving for a reason to support it. That leaves Sotomayor. In past articles, I have stated that she may not be the stone-cold liberal Obama thought he was appointing. If she votes with the majority making it 6-3 instead of 5-4, then I would fully expect Roberts to “reward” her with the opinion. If 5-4, most would expect Kennedy to get the opinion, but he sometimes goes off task and the decision gets muddled. Roberts could use the opportunity to stake a claim to his legacy on the Court, but his opinions are often narrowly tailored that leave questions open for consideration another day. The most thorough, principled and Constitutionally sound decision would come from Clarence Thomas. There is no way Scalia or Alito would get the opinion in a 5-4 decision. That would be a huge surprise.
Three final thoughts. Many people would prefer a 6-3 decision over a 5-4 decision. They claim that a 5-4 decision along ideological lines “weakens” the decision. That plays into the liberal whines that the Court is politicized. Some have speculated that Roberts wants to avoid those criticisms. However, a 5-4 decision holds just as much weight as a 6-3 or 7-2 decision in terms of practicality. Bush v. Gore- the second half of it- was 5-4 and Bush was President for 8 years. Citizen’s United was 5-4 and corporations are still pumping money into political advocacy. A constitutionally sound 5-4 decision is just as good as a unsound 8-1 decision in terms of practicality. Also, poll after poll indicates that most Americans believe the mandate question will be settled along ideological/political lines. Hence, the perception of the Robert’s Court neither gains nor loses in the eyes of Americans.
Secondly, there is the possibility of a plurality decision where 5 or 6 Justices strike down the mandate, but for vastly different reasons. Although still a matter of practicality, plurality decisions sometimes provide loopholes for future litigation. And in the eyes of most observers, plurality decisions lessen the impact and add further confusion to the resolution of the issue.
Finally, if the mandate is struck down, then obviously Obamacare is rendered a 2000+ page monstrosity with no teeth for enforcement or funding. It would be like removing the steel infrastructure from a very ugly skyscraper and expecting it to still be standing a year later. And Obama and company know that, which is why they defended it so vigorously here and in the lower courts. But, if it should fail, I would expect fingers will be pointing at Solicitor General Donald Verrilli. Reading his briefs in this and other cases, it is obvious that he is astute in his knowledge of the law and that he had a tough task defending this law. Simply put, he is better at writing briefs than he is at arguing cases orally. I would not put too much emphasis on his stumbling during oral argument. Still, if the mandate is struck down as I expect, Verrilli’s days as Solicitor General will unfortunately be numbered. Someone has to take one for Team Obama for this loss of THE key part of his signature piece of legislation. Staying true to liberal form, Obama and his liberal health care policy makers and people like Nancy Pelosi will not admit culpability for foisting an ineffective, unconstitutional piece of crap down the throats of the American public. In the mind of Obama, Obama does no wrong; therefore, it must have been Verrilli who lost this case. If by some strange circumstance Obama prevails here, it becomes even more urgent- starting Friday June 28th- that we unite to retire Obama from the Presidency and then hold Romney and Republicans to their word and repeal in whole that which is Obamacare.