The eagerly-awaited decision by the Supreme Court in the ObamaCare case is expected to come within the week, and there has been a lot of speculation about how it will turn out. But a lot of people handicapping the case don’t seem to understand either what the case is really about, or how the Supreme Court works. Consequently, a lot of what is being written and said is jibberish, and much of the commentary after the opinion is released will be as well.
First, the case has four possible outcomes. The Supreme Court can affirm Judge Vinson’s conclusion that ObamaCare is unconstitutional and overturn the entire law. Or, the Supreme Court can affirm the Eleventh Circuit’s conclusion that the insurance mandate is unconstitutional, but the mandate is severable and the remainder of the law stands. Or, the Supreme Court can reverse both the District Court and the Court of Appeals and hold that the entire law does not violate the Constitution. There is also a fourth possibility, which is that the mandate is severable and unconstitutional, but there are other portions of the bill that also need to be invalidated.
Next, you need to appreciate how the Court works. Even here there are two separate issues at play.
The first is given that there are four possible outcomes I expect that at least one Justice will favor each of the possible choices. Consequently, you can expect a number of concurring and dissenting opinions expressing rationales for each of the possibilities.
But more importantly is how the final result turns out. Justices don’t decide as purely as many presume, and to understand why, consider how the opinion gets written. The Chief Justice—presently John Roberts—gets to assign the task of writing the opinion. During the Rehnquist years, there were a number of instances when Chief Justice Rehnquist voted with a majority with whom he undoubtedly disagreed (turning a 5-4 decision to a 6-3 decision) so he could assign himself the job of writing the opinion to mitigate the precedential impact of the result.
And while the Justices will not openly admit it, there are times when Justices bargain for either the right to write the opinion, or to influence its scope, in exchange for their vote. So in a case like this, where the ObamaCare mandate took a pretty bad drubbing during oral argument, don’t be surprised if one or more of the members of the liberal bloc such as Justice Kagan side with the majority in exchange for keeping the holding as narrow as possible, or possibly even the chance to author the opinion.
Think for a moment about that possibility—Kagan writing an extremely narrow opinion overturning the mandate and the mandate only. This is an extremely politicized case, and the president has come out and said that overturning any portion of the law would be “judicial activism.” (Never mind that the former law professor, like many conservative commentators, uses the term “judicial activism” incorrectly by suggesting that it would be.) But, if the final decision is 6-3 or 7-2, very narrow in its scope, and written by a member of the liberal bloc—perhaps even an Obama nominee—the Court comes out looking more unified and restrained than if it is a broader 5-4 decision decided more or less along party lines.
Given the skepticism expressed by most of the Justices during oral arguments, I find it unlikely that the Court will hold that the mandate is constitutional. The odds of a 6-3 or even 8-1 holding that is extremely narrow in its scope is higher than a 5-4 vote to uphold the entire law. The question is how the negotiations went after oral arguments.
If Justice Kagan or Ginsburg stepped up to vote with the majority in exchange for the right to write the opinion, the Court will come out look more unified and less politicized than virtually any other result. I place the highest odds on that happening. Undoubtedly the Chief Justice—a Bush appointee—doesn’t want to write the opinion and put himself squarely in the liberally-biased media’s crosshairs.
As things stand, the only votes I’m confident of are Thomas, Scalia, and Alito voting to overturn all or part of the law, and Breyer to affirm the entire law. As I said earlier, I also expect a concurring or dissenting opinion in support of all four of the possible outcomes of the case (affirm the entire law, overturn the entire law, overturn the mandate only, and overturn the mandate and other related provisions).
So while the entire world waits with baited breath for the Court’s decision, you can rest assured that there are plenty of sweaty palms and lots of hand-wringing going on at the Supreme Court as we speak. The most likely outcome is that the Eleventh Circuit’s conclusion that the mandate is unconstitutional and severable will be affirmed. I also find it unlikely that Thomas, Kennedy, Scalia, or Breyer were assigned the opinion—and who writes the opinion is extremely important, especially in this case. A very narrow holding written by Kennedy or Chief Justice Roberts (if a 5-4 decision), or Kagan or Ginsburg (if 6-3 or higher) are the most likely choices.
Keep in mind, however, that just because Kagan or Ginsburg write the opinion doesn’t mean they necessarily agree with it. Such is the way of the United States Supreme Court.
This article is also published at The Country Thinker.