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The Fate of Obamacare: Reading Tea Leaves of the Supreme Court Decision
The third and last day of arguments is over. The Justices have all asked questions—save Clarence Thomas, who remained silent throughout the hearings, as is his tradition. The Supreme Court’s ruling is expected in early June, leaving the world with exactly two months to wonder about the fate of a President’s signature issue, and a law that will affect virtually every American.
In March 2010 President Obama signed into law the Affordable Care Act, also known as Obamacare. Millions celebrated, but millions of other Americans protested, with Republican attorney generals challenging the law and GOP presidential hopefuls vowing that this was not the end of the battle. With the stroke of his pen, Obama overhauled one sixth of the world’s largest economy, enacting many popular reforms but also instituting a controversial individual mandate, which requires Americans to purchase some form of insurance (they may choose from the many options available) or pay a fine of about 300 dollars.
Throughout the legal battle, there were federal judges who upheld the law and federal judges who ruled it unconstitutional. In order to gain some finality on the issue, both sides requested that the Court hear the case. US solicitor general Donald Verrilli argued the government’s case that every part of the law is constitutional, specifically pointing to the Commerce Clause to justify the individual mandate. Paul Clemens, a former solicitor general for the Bush administration, is leading the charge against Obamacare, attacking it as a law that destroys “the basic nature of our government.”
With the arguments made and the questions heard and recorded, there are plenty of tea leaves for us to read as we try to anticipate the outcome. It’s going to be a momentous decision for two reasons. The first is the sweeping importance of the health care law itself. The second reason is because the decision will influence the presidential election. There is reason to think that the Court striking down the law will work to Republicans’ benefit. Such an outcome would demoralize the Democratic base, and perhaps energize their voters. If the Court upholds the law, Obama can more credibly argue on the campaign trail that his crowning achievement has passed constitutional muster.
Ideological tendencies are the most important factor in any Supreme Court case, and the ideological leaning of this Court slightly favors Republicans. Clarence Thomas, Samuel Alito, John Roberts and Antonin Scalia are all reliable conservative voices on the Court. Elena Kagan, Stephen Breyer, and Ruth Ginsburg make up the liberal wing. The tiebreaker goes to conservatives with Anthony Kennedy, who is generally thought of as a swing vote who leans in the conservative direction.
However, looking at just the ideological bent of the Court is only a crude analysis. Precedent matters too, and it’s worth considering that that even “reliable” Justices still give unexpected verdicts some 20% of the time on average. And in such an extraordinary case, not all of the usual considerations may matter, a reality that Justice Kennedy himself alluded to when he noted that he was well-aware of the magnitude of the problems of the national health care system, and implied that strong government action might be needed.
This is just one important comment in a series of tea leaves for anyone interested in the Court’s eventual decision. There have been some reaffirmations of conventional wisdom from the questions the Justices have asked, but a few very important surprises. Perhaps the most significant development is that Chief Justice Roberts seems open to the idea of allowing the individual mandate. Roberts recognized the uniqueness of health care in justifying federal intervention, noting “Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it.”
This statement is all the more revealing because Roberts was not only paraphrasing the government’s main argument. He seemed to actually be defending it. The justification for the individual mandate is that Congress has constitutional authority to institute it because health care is a unique system that requires a federal solution. If Roberts agrees with this argument, it’s very difficult to imagine how the Court fails to uphold not only the individual mandate, but every aspect of Obama’s law.
Fortunately for Republicans, the other Justices of their usual coalition seem to be holding the line. Scalia voiced his skepticism of the law, asking “If the government can do this, what else can it not do?” Justice Alito also appears poised to vote to strike down the law, along with the mute Clarence Thomas. Perhaps most importantly, Justice Kennedy signaled that he agrees with Clemens’ argument about reining in the role of government, saying that the law would “change the relationship” between American citizens and their government.
But the pivotal Justice seems to be conflicted. At another point, he joined Roberts in acknowledging the uniqueness of the subject of health care regulation, saying “I think it is true that if most questions in life are matters of degree ... the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case.” This is another tenet of the Obama administration’s argument. One uninsured person makes it harder for the national system to survive—we’re all in this together—and thus the individual mandate is essential to any serious effort at health care reform.
So if Justice Kennedy is conflicted, and Chief Justice Roberts seems surprisingly receptive to the Obama administration’s argument, it would seem that the Court is more likely than not to uphold the law. President Obama’s two nominations to the Court, Kagan and Sotomayor, showed no signs of being anything but faithful team players in their questioning. Justice Breyer seemed to come to the aid of solicitor general Verrilli by prompting him to identify the 300 dollar penalty as a tax penalty rather than merely a penalty—a meaningful sign because the individual mandate framed as a tax will be easier to classify as constitutionally enabled federal action. Justice Ginsburg, perhaps the most liberal member of the Court, was the most vocal in her skepticism of the challenge to Obamacare, comparing the law to popular systems like Social Security.
With four Justices sympathetic to the law, and three Justices itching to strike it down, it appears that only the verdicts of Roberts and Kennedy are in play. The Court may strike down the law by a narrow vote of 5-4 or it may uphold it entirely in a vote of 6-3. Or it could simply remove the individual mandate, while expressly upholding the more popular provisions of the law. The unofficial and seldom-acknowledged politics of the Supreme Court matter, too. Whatever his preferences, Chief Justice Roberts may simply follow Kennedy in upholding the law, so as to be able to write the majority opinion and frame the decision to tailor his own jurisprudence.
With either outcome possible, and likely determined by behind-the-scenes judicial politics that no one outside of the Court will ever witness or hear of, neither side can rest easy until June. But the most recent developments give reason to think that the Court will eventually uphold the law, giving a bitter but probably subsidized pill for Republicans everywhere to swallow.