Are There Five Supreme Court Votes Against ObamaCare?

“The fate of health care reform is where it was yesterday—in the hands of Supreme Court Justice Anthony Kennedy.” So writes Slate’s David Weigel, reflecting the accepted wisdom about U.S. District Judge Roger Vinson’s decision striking down the Patient Protection and Affordable Care Act. And Weigel may be right. Justice Anthony Kennedy often does cast the crucial fifth vote, sometimes siding with the Court’s liberal bloc, other times with the conservatives. And the legal challenge to ObamaCare certainly won’t be over until the Supreme Court weighs in. But the Kennedy-as-decider scenario also assumes that all four conservatives will vote against the individual mandate. Can we be so sure about that?

Until two weeks ago the speculation centered mostly on Justice Antonin Scalia, who famously concurred with the liberal majority in Gonzales v. Raich (2005), the case where Congress’ authority to regulate interstate commerce was held to include medical marijuana cultivated and consumed entirely within a single state. So Scalia’s commitment to a less expansive reading of the Commerce Clause was far from guaranteed. But then last month Scalia joined an opinion written by Justice Clarence Thomas which dissented from the Court’s refusal to hear an important Commerce Clause case. According to Thomas and Scalia, the Court had permitted a lower court ruling to stand whose “logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States.” Keep in mind that it takes four votes for the Court to hear a case and that Scalia could have kept his vote secret like the other seven justices. Instead, he sided with Thomas and sent a very clear signal that he’s still willing to enforce a few limits on Congress’ power “to regulate commerce...among the several states.”

That leaves Justice Samuel Alito and Chief Justice John Roberts. Roberts is the real question. As Charles Fried, a former solicitor general under President Ronald Reagan and a respected elder in the conservative legal movement, told Politico, “I think there’s a good chance it will be a 6-3 decision in favor of constitutionality.” Here’s how Fried explained it to Politico’s David Nather:

Chief Justice John Roberts “does not believe the Commerce Clause allows you to do everything and anything,” but he’s not “an adventurer” and therefore might not go so far as to strike down the mandate.

It’s an important point. Roberts has repeatedly described himself as a fan of “judicial modesty” and stressed his belief in the importance of respecting precedent. That’s a stance that might lead him to uphold the individual mandate as consistent with the Court’s already broad reading of the Commerce Clause. But then again, Roberts has left himself some wiggle room, writing in Citizens United, for example, that it’s acceptable to strike down precedent “when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”

So it's still a guessing game. But it’s also a serious mistake to assume that Kennedy is the only ObamaCare vote we need to watch.

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  • fish||

    I think Tony can rest easy...he's still going to get his health care...shitty and bureaucratic though it will be! The eternal majesty of government proceeds unimpeded.

  • Xeones||

    If only the rest of us weren't getting stuck with it too.

  • fish||

    Indeed.

  • ||

    There are two things at play here. First, the overreach in this law is great enough that it will be hard to legally defend without formally acknowledging the death of any restrictions on the federal government's powers under the Commerce Clause.

    Second, the law is pretty unpopular, rightfully perceived as a sloppy and inappropriate nationalization of healthcare. The Court won't buck that without a good reason, and there isn't one of those here.

  • ||

    Didn't follow your second point, Pro. Why would a Supreme Court justice, appointed for life, care about public opinion?

  • ||

    You know, you'd think that it wouldn't matter, but it often does.

  • ||

    But the Kennedy-as-decider scenario also assumes that all four conservatives will vote against the individual mandate. Can we be so sure about that?

    I would not be at all surprised if Scalia pulled some sort of Freedom is Slavery ruling out of his ass.

  • ||

    Maybe he'll mention the new professionalism of government health care bureaucrats.

  • ||

    I see this meme a lot - is this a Scalia quote from some court case? Which one?

  • fish||

    Ask Balko.

  • Vermont Gun Owner||

    Hudson v. Michigan, about how no-knock raids were okay because of the new professionalism of police departments around the country. Although I think the actual quote was "increasing professionalism".

  • ||

    Thanks!

  • Barely Suppressed Rage||

    Specifically:

    Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously.

    Snork! Chortle! Guffaw!!

  • ||

    Those who say meme parrot the idea that memes exist, rather than truth, that persons are merely parroting what others say.

  • Cliché Bandit||

    there is no spoon.

    he said meme, huh huh

  • Winded||

    Wait, Root's calculus is only looking at the possible members of the court's conservative wing that might vote to overturn. Don't we also need to look at the members of the liberal wing who mi...

    Wow, sorry, don't know what came over me there.

  • ||

    Interesting how that works, isn't it?

  • CavMedic||

    Yeah-that was exactly what I was thinking too.

  • ||

    I don't think we can discount the various justices' reluctance to become pariahs in polite Washington Society.

  • fish||

    One would hope that there would be less susceptibility to peer pressure at these lofty heights.....and this in a job where you can't get fired.

  • Anonymous Coward||

    The "for life" appointments are political mythology. Supreme Court justices are appointed for a term of good behavior. It's just that Congress has only impeached one of them in the history of the United States.

    I'd impeach at least one or two a year, if for no other reason than to rub salt in their eyes.

  • GroundTruth||

    Having upheld the Second Amendment already, I fear that upholding the Tenth is too much to hope for in the span of just a few years.

    On the other hand, if the Tenth is finally upheld, it will hopefully be the high water mark for congressional extremism.

    Gonna be a long year or so waiting for this one!

  • ||

    Are there still people out there that think that supreme court justices are appointed to limit federal power and purview.

    ----

    It is good to see 'judicial activism' debate reversed and the red/blue fuckers take the exact opposite stance of the one they held, oh, like four years ago.

  • ||

    It's the partisan way, dude!

  • ||

    Big difference, genius.
    Conservative judicial activism means striking down a brand new liberal law never dreamed of by the founders.
    Liberal judicial activism means upending centuries long practices based on novel new readings. Get it?

  • prs130||

    It'll come down to Kennedy. Scalia will be on board... Raich was terrible, but the precedent (Wickard) was right there, so it's defensible from a stare decisis viewpoint. The same goes for Roberts... there's no overturning to be done, so the issue of modesty won't come up. That's four to strike...

  • Mike in PA||

    I agree. The only way Scalia would be against declaring it unconstitutional is if it helped his social conservative viewpoint - it doesn't; he'll vote for unconstitutional.

    No need to sweat Roberts. He gets it.

  • fish||

    I'm not convinced...but from your lips to gods ear!

  • J. L. Picard||

    There are not five lights.

  • LibertyMark||

    However, I believe he did say that if he hadn't been rescued, his next answer was going to be that there were, indeed, five lights.

  • ||

    If it had been me, my plan when I broke would've been to say "There are six lights!"

  • ||

    Considering that there are probably trillions of electric lights in the Federation in the 24th century, I'm not sure why Picard didn't just say "there are five lights" and tell himself that he was just saying that at least five lights exist in the universe.

  • Vermont Gun Owner||

    I believe he actually said that he actually saw five lights, not that he was going to say so.

  • ||

    Actually, he confessed to Bev that he would have said anything to end the torment at that point...but that the disturbing part was, as you say, that he actually saw five lights.

  • Vermont Gun Owner||

    I think an effective way to break someone would be do the four lights thing, and after a while of abuse physically switch it to five. Even if they don't admit seeing five to you, they're now faced with the possibility that they've broken.

  • ||

    Picard was broken and never left Cardassian prison. The rest of the series was a holodeck hoax perpetrated on him by his cruel jailers.

  • Fist of Etiquette||

    Then Generations alone should get the Cardies tried at the Space Hague.

  • ||

    Good. Ed Jellico was the best captain in the entire franchise.

  • Really?||

    I think he said that to Troi.

    That'll be enough arguing about the minutiae of Star Trek canon for the next 10 minutes or so.

  • ||

    That'll be enough arguing about the minutiae of Star Trek canon for the next 10 minutes or so.

    Ok, now, where were we?

  • ||

    You're right, it was Troi. I have a hard time telling the difference sometimes.

  • ||

    Troi is the one with large breasts.

    Bev is the one played by somebody who can act.

    There are other differences, but those are the most obvious.

  • Vermont Gun Owner||

    Also Troi is the one who occasionally bangs Number One and Bev is the one who Picard keeps trying to bang.

  • Gul Madred||

    What are the defense plans for Minos Korva?!

  • Barely Suppressed Rage||

    One of the better episodes of that otherwise kinda shitty show.

    Watching it now, I can't believe I watched it all the time when it was new. Sheesh. It seems so hokey now.

  • ||

    It seems so hokey now.

    This phenomenon will always happen, as long as the medium in question is still evolving. You think the original series seemed hokey back then? It was the most cutting edge, coolest-fucking-shit that had ever been made at that point.

    30 years later, we've seen Terminator, Jurrasic Park, holodecks on Star Trek, and a mostly CGI cast in Star Wars....which will all look hokey as shit in 15year when movies are entirely CGI, with actors only ever providing voices and motion-capture. Then 15years after that we'll have holodecks ourselves, and any old "cinema" experience will seem hokey.

  • Barely Suppressed Rage||

    Funny you mention Terminator. Just a couple days ago, my wife was flipping channels and came upon the original Terminator movie in progress. So we watched it and couldn't believe how crappy the Terminator robot stop-motion animation looked. It's still a pretty good movie, overall, though.

    T2 was one of the few sequels that were as good as if not better than the original movie. They were all downhill after that.

  • Vermont Gun Owner||

    I vastly prefer T2, although I think that might be partly from a Judgement Day arcade game I used to play as a kid during my mom's bowling league.

  • Citizen Nothing||

    I had to turn to Wikipedia to decipher this reference. Should I turn in my nerd badge now?

  • Fist of Etiquette||

    Actually, I figured it would pass unnoticed. Stupid me.

  • Wind Rider||

    It's a total crap shoot, given the past examples of Unconstitutional? Yeah, so what's your fucking point, punks? behavior the Court has exhibited in the past.

  • Wind Rider||

    Not to mention the hey, our hands are tied because some dead jackasses fucked up a long time ago, so we have to fuck up, too! approach.

  • Vermont Gun Owner||

    The deference to precedent is idiotic. The only precedent that matters is the Constitution.

  • pmains||

    I disagree. There are clearly points where the Constitution is vague, and could be interpreted in multiple ways. For instance, what exactly constitutes a reasonable search? So as to make court cases less of a crap shoot, some weight should be given to precedent. Of course, fidelity to the text should come first.

    Additionally, legislatures should be able, for instance, to define what "due process" is, so long as they do not drain the words of their meaning. E.g. they cannot redefine "due process" to mean "a ham sandwich" and then apply due process rights on the basis of the new nonsensical definition. Similarly, they should not be allowed to define activities which are neither commercial nor interstate as interstate commerce. (And Rhode Island is neither a road nor an island.)

  • The Slaughterhouse Cases||

    I know, right?

  • ||

    Are there still people out there that think that supreme court justices are appointed to limit federal power and purview.

    Oh, be serious; that's why the confirmation process is so thorough. The Senators want to be sure the justices will guard against accidental legislative overreach.

  • Vermont Gun Owner||

    Thank goodness you can't get away with things like avoiding questions or admitting that you think the Commerce Clause gives Congress absolute power!

  • ||

    I doubt any of it is accidental.

  • Montani Semper Liberi||

    I hear Costa Rica is nice this time of year, and I've always wanted to see Australia.

  • Brett L||

    "I hear Costa Rica is nice this time of year"

    You could say that any time and it would be true.

  • nekoxgirl||

    Why don't they just publicly burn the Constitution and get it over with. That's pretty much what a ruling in favor of the individual mandate will amount to. The last hope for is state nullification then.

  • nekoxgirl||

    "is for" not "for is"

  • ||

    Instead of fighting free health care us radical should embrace it. Then, maybe, we'll get us some beer and hooker reform and then sit back.

  • ||

    You want your beer and hookers provided in as bureaucratic-fashion as possible? Personally, I'd prefer to drink my beer without having to fill out 25 pages of paperwork and provide current proof of residence with 3 forms of photo ID, tyvm.

  • Alan Vanneman||

    Since at least six justices voted against hearing Alderman v. United States, the "important Commerce Clause case" that Thomas and Scalia wanted to hear, it seems that the Court, as Thomas put it, has permitted a lower court ruling to stand whose “logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States.” But whether the Court would allow itself to be bound by Thomas' logic is dubious. I think the Court will dodge the issue until after the 2012 presidential election. If the Democrats do well, the Court's conservatives won't want to piss them off.

  • ||

    They aren't going to wait. And I think there's little chance of the Democrats "doing well" in 2012. Not doing miserably is probably the best they can expect.

  • ||

    With two Senators already throwing in the towel, it isn't looking very good for the other twenty or so Democrats facing reelection.

  • ||

    STOP IT!

  • marlok||

    "If the Democrats do well, the Court's conservatives won't want to piss them off."

    Why would the conservative justices care what the Democrats in Congress think?

    I would think that the concern runs in the other direction. For example, Obama might be regretting his attack on those conservative justices in his SOTU a ways back. Not smart to antagonize someone who can sink your legislation.

  • Citizen Nothing||

    Speaking of Slate, I was watching the Britney's New Look episode of South Park last night for the first time. When the boys learn they can make $100,000 for a picture of Britney, I thought I heard Cartman say, "That's enough to buy Slate!"
    Awesome political/journo satire! But no. When I consulted the transcript today, I learned he was saying "slaves."
    That made me sad.

  • Ass Heaven||

    "When the boys learn they can make $100,000 for a picture of Britney, I thought I heard Cartman say, "That's enough to buy Slate!"
    Awesome political/journo satire! But no. When I consulted the transcript today, I learned he was saying "slaves.""

    I'm not really seeing a difference here.

  • ||

    Slaves would have enough dignity to have themselves whipped to death rather than perform such debasing work.

  • Sean Mack||

    Never underestimate the court's ability to fall beneath our underestimation.

    I can see it now: 5-4, with two dissents and two partial concurrences, and a muddled result that strikes the mandate but then conjures up some severability out of thin air to preserve the rest.

  • scotus||

    We deem the bill severable.

  • ||

    Fried must be fried, There is no way Roberts overturns Vinson's well reasoned decision, I don't care how big a pussy he is. And Citizens United proved that he isn't as go along to get along as he led some to believe.

  • Tman||

    He made a big point during his confirmation to talk about how Judges are "supposed to call balls and strikes" and not to get involved in legislating.

    This is such a complete wild pitch of a ball that from a logic standpoint I can't imagine how anyone could argue that this ISN'T over reach on the part of the Commerce Clause justification, but sadly enough most of us realize that the liberal judges will vote in favor of the mandate, and Kagan and Sotomayor will probably write the majority as a gift to their president.

    Why do we have a Supreme Court when half of them think they are elected legislators?

  • Fat Crack Ho||

    ". . . Kagan and Sotomayor will probably write the majority as a gift to their president."

    More like a thank-you note.

  • Barely Suppressed Rage||

    Being that it is a question of law and not of fact, the Court owes less deference to the lower court's opinion. Also don't forget that, absent some interesting wrangling, this has to go to an Federal Circuit Court of Appeals first - so what the SCOTUS would be reviewing would the Appeals Court opinion, not the District Court's judgment.

    Ultimately, the SCOTUS very well could determine that the lower court simply got the law wrong. Being that it is a question of what the Constition means, the SCOTUS has the ultimate power to make that determination itself. So saith John Marshall.

  • nicole||

    That’s a stance that might lead him to uphold the individual mandate as consistent with the Court’s already broad reading of the Commerce Clause. But then again, Roberts has left himself some wiggle room, writing in Citizens United, for example, that it’s acceptable to strike down precedent “when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”

    Is it just me, or is the second sentence a bit of a non sequitur? I mean, legislation doesn't count as "precedent," does it? And Vinson didn't have to overturn any precedent (which he couldn't have done anyway, right) to declare Obamacare unconstitutional. So should Roberts's hard-on for "modesty" extend to an unwillingness to...do the actual job of the Supreme Court and determine constitutionality?

    Of course, I would love if he was also up for overturning Raich and about a million others. But I'm feeling pessimistic and am betting (for now) on an 8-1 decision in favor of the law.

  • ||

    I believe "judicial modesty" is the attitude that all else being equal, the courts should lean toward allowing the political branches decide what the law should be. It is the opposite of "judicial activism".

  • Wind Rider||

    'Judicial Modesty' shouldn't be defined as not stating the obvious that the politics brought in a pony, especially if it's busy crapping on the carpet in front of everybody.

  • Barely Suppressed Rage||

    The reference is to earlier SCOTUS precedent, including Wickard v. Filburn, Gonzales v. Raich, United States v. Lopez and others. The question is whether the individual mandate can be upheld as an extension of earlier (precedent-setting) Supreme Court decisions, and if not, whether it still can be upheld under the Commerce Clause.

    The question I think here is, if the individual mandate can be justified under that Court's precedent, is that precedent itself right?

    I submit that it cannot be justified even under all those precedents - the Court has never indicated anything that would suggest Congress has the power to go as far as it has in the name of regulating interstate commerce. So "respect for precedent", to me, should not be as much of an issue as "can Congress go as far as it has here, under the Commerce Clause?" The answer to which, of course, is "no fucking way, dumbass."

  • nicole||

    I submit that it cannot be justified even under all those precedents

    Yes, I would agree. But further, even if it could be justified by those precedents, as Judge Vinson has shown, those precedents need not force SCOTUS to uphold the law. So Roberts's love of precedent would not be sufficient for him to rule in favor of Obamacare.

    However, Tulpa is probably right that his "modesty" goes further than that, into territory I would consider pure abdication of responsibility.

  • ||

    Thank you for explaining why I'm reflexively distrustful of precedent.

  • ||

    that's right - no way any of the four conservatives will vote for this. Beyond what you wrote, this law doesn't address an otherwise irreparable harm - the basic question will certainly be asked, 'do we even need this law, or are their clearly constitutional alternatives which achieve many of the same objectives?'
    It would seem that this is a purely policy question, outside the purview of the court, but it will probably be a consideration nonetheless. It should be, with something this significant.

  • ||

    Let's say that this plays out the way it probably will:

    SCOTUS issues a massive, tortured opinion, replete with concurrences and dissents, upholding ObamaCare.*

    What are the chances of a Constitutional amendment overturning ObamaCare? It depends on how many Republicans are in the House and Senate, initially. Unlikely there will be two-thirds, but there just might be barely enough scared Dems left.

    Would 38 states ratify? Possible. We've already got over half on record as saying its unconstitutional.

    Still, a long shot. Depends on how shitty the economy is, and how much of a botch the implementation of ObamaCare is, I suppose.

    *Sadly, this opinion will probably come out in May or June, 2013 (assuming that the Circuit Court doesn't gronk out its own massive, tortured opinion etc. in time for it to make it onto the 2011 docket, which is a safe bet). The big cases on the 2012 docket won't be decided until the very end of the session, in May or June of 2013. Too late to affect the Presidential election.

  • ||

    ""What are the chances of a Constitutional amendment overturning ObamaCare?""

    There's also a possibility of a Constutional amendment to allow Obamacare if SCOTUS shoots it down. Don't know if it would fly.

  • GroundTruth||

    Like a brick.

    Since an amendment needs to be ratified by 37 states, and O-care is already being challenged by 26, it's pretty clear that at least this year, such an amendment is at best a very bad joke.

  • Vermont Gun Owner||

    What are the chances of a Constitutional amendment overturning ObamaCare?

    Easily solved. Just have the SCOTUS rule that the amendment somehow means the opposite of what it says.

  • Attorney||

    Charles Fried, a former solicitor general under President Ronald Reagan and a respected elder in the conservative legal movement

    No. No. No. No. Fried was one of the statist SOBs who were lining up over the summer to write opinion pieces about how anyone who claimed Obamacare is unconstitutional was nuts. See his excretions hier.

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