With the Supreme Court due to rule on the Affordable Care Act either Thursday or Monday I thought I would take some time to do a little handicapping on what the ruling might be.
Before I do so I would offer a bit of a cautionary warning. While I have not dealt with the US Supreme Court I have had experience with both state and federal judges. I have found that it is about as easy to predict the behavior of judges/justices as it is to predict the behavior of the average three year old.
This is not to say that I am comparing the two groups directly, but both have a strong element of unpredictability. The three year old may have loved to eat french fries at every meal for the last month but that doesn’t mean they are going to do so at this meal. By the same token I have personally watched judges tear my arguments apart like I had the brains of that three year old and then rule in my favor. You just can never be sure what will happen.
Having said that I do think there are some facts we can reasonably rely upon regarding how the nine Justices will behave.
I think it is reasonable to assume that the four liberal justices (Kagan, Sotomayor, Breyer and Ginsburg) will want to vote to uphold the entire law while the four conservative justices (Roberts, Alito, Thomas and Scalia) would want to at least vote to strike the mandate and at least some would want to strike the entire law.
As always Justice Kennedy is in the middle and he would be the one to decide which way the ruling goes.
Justice Kennedy is an interesting character when it comes to his judicial philosophy. He tends to lean to the right, often finding himself the fifth member in a 5-4 ruling. But that doesn’t make him a hard core conservative either. According to a study by Slate magazine, during the 2010-11 session he was in agreement with the conservative members of the court about 83-90 percent of the time but with the liberals 66-74 percent.
Of course this in part reflects the fact that there are a number of unanimous or near unanimous rulings, but it does also show that he is comfortable with both groups of justices, much more than the others intersect with each other in judicial philosophy.
While he has often been in a 5-4 conservative majority he has also been on the side of some 5-4 liberal ones. In several cases he joined with the 4 liberals on gay rights issues and those arguing against Proposition 8 reportedly constructed their argument to reach him. He has also case liberal votes on issues of capital punishment and habeas corpus rights.
So I would argue that this mix of generally conservative but sometimes liberal views makes Kennedy more of a libertarian, and his arguments and questions often focus not on issues of privacy but issues of liberty.
So this would tend to make Kennedy likely to strike down at least the mandate portion of the Affordable Care Act.
But this doesn’t end the process, in part because we still need to consider what would happen to the rest of the law and in part because we need to consider the views of one other member of the court, Chief Justice Roberts.
Now some of you may be asking, why are we talking about Roberts ? Isn’t he a vote to strike the law already ?
Well the answer to that is yes and no.
In theory judges (and justices) are supposed to look at a case and consider nothing but the law itself, and for the most part they do so. But people are human beings and they cannot help but to consider other factors. In the case of Chief Justice Roberts there is the issue of the legacy of history.
Supreme Court Justices, even Chief Justices, are not often remembered by history. To the degree they are it is often for one or two key cases or decisions. For example if I were to mention Roger Taney to you, most readers would not recognize the name, even though he was one of the longest serving Chief Justices in US history.
But if I were to mention the words Dred Scott, most of you would have a vague memory from school about a bad decision that supported slavery. The one thing Taney will be remembered for is that decision. Similarly, Chief Justice Rehnquist will likely be remembered for the 5-4 ruling in Bush vs Gore.
Now I don’t think it is fair to compare Dred Scott to the current case, I do not think even the most partisan supporters of the Affordable Care Act would equate striking down the mandate to support of slavery.
But if this case is decided by a 5-4 ruling it will almost certainly be the one legacy that Justice Roberts carries with him and it will be a controversial one. So I think that he will want to try and prevent a 5-4 ruling if he can. This is not unusual, in past cases like Brown v Board of Education and Roe v Wade there was an internal effort by the Justices to avoid a 5-4 ruling.
So how might Roberts try to accomplish this ?
I suspect he will go to Justice Kennedy and ask him to write an opinion that could bring another justice along. Obviously his first goal would be to have the ruling strike the mandate since that is his inclination. At the same time on the issue of whether the court should move to strike other provisions of the law, even Justice Scalia expressed doubts about the court going through the law line by line.
So I suspect that Kennedy and Roberts would be inclined to craft an opinion that strikes the mandate but upholds the rest of the law. Although the Congress did technically forget to include a specific provision in the law allowing the court to strike part of the law and leave the rest alone, such a process is common in the courts even absent such a provision.
In addition the law has many provisions that even many conservatives concede are lawful.
I think it is possible that a properly crafted opinion could attract either Justice Ginsburg or Breyer. Both did express some (although certainly not a lot) of skepticism about the mandate and either might be attracted to the idea of joining the majority by making the mandate ruling as narrow as possible.
Certainly the conservative justices like Scalia and Thomas would prefer to strike the whole law, but they also are realistic enough to recognize what is needed to get Kennedy (and perhaps Roberts) to join their majority (and they have made such deals many times before).
So that could give us a 6-3 ruling striking the mandate but keeping the rest of the law in place. Of course if none of the liberals are willing to join in then I suspect Roberts would accept the 5-4 ruling striking the mandate but upholding the rest of the law (I don’t think Kennedy would be inclined to strike the entire law)
So what happens if Kennedy decides to side with the four liberals ?
Well then I could easily see Roberts joining the liberal side to create a 6-3 ruling upholding the entire law, but one where he would write the opinion in order to keep it as narrow as possible. The rule in the Supreme Court is that if the Chief Justice always gets to assign the opinion for the side he/she is on, otherwise the honor goes to the senior Justice in the group.
So this gives us three possible scenarios.
6-3 to strike the mandate but uphold the law
5-4 to strike the mandate but uphold the law
6-3 to uphold everything.
5-4 to uphold is possible but I really think Roberts would join the uphold majority to control the opinion.
Now this is already a bit of a mess, but it actually could get more complicated depending on how the ruling goes.
Let us assume that the ruling is to strike the mandate but uphold the rest of the law and that we have 5 or 6 votes to strike the mandate. But we have several conservative justices who want to strike the whole law, yet Kennedy (the key vote) wants to uphold the rest of the law.
We could then get a fun little thing called a partly concurring, partly dissenting opinion from either Thomas or Scalia, in which they agree with the part striking the mandate but disagreeing with the portion upholding the rest of the law.
This would mean the core of the ruling, striking the mandate would be a 5-4 or 6-3 ruling (depending on whether a liberal joined in to limit the scope) but with dissents on both sides of the fence, with the liberals dissenting from the striking of the mandate and the one conservative dissenting from upholding the rest of the law.
This of course is a very unlikely scenario (I am not entirely sure how the math would work on such a split) but it could happen.
As I said at the start these musings are just that,musings from an observer of the court who has a few educated guesses, but no firm idea, as to what the court will do.
But in a matter of days we shall know.