Let me start with a caveat: I'm not an expert on the Supreme Court, though I have taught Constitutional Law and Judicial Process courses for undergraduates. Having said that, I think I know enough about the Court and its behavior to make two relatively non-controversial statements.
- Oral arguments before the Court rarely, if ever, determine the outcome of a case and;
- Anyone who thinks they 'know' how the Supreme Court will decide this case is guessing.
The Supreme Court has many options available to it in deciding the outcome of the lawsuit by the 26 states hoping to overturn the Patient Protection and Affordable Care Act of 2010 (hereafter, ACA), derisively referred to by Republicans as Obamacare. The March 27th arguments were devoted to two primary questions:
- Does Congress have the right to mandate the purchase of a product and;
- Is the penalty for failure to comply properly considered a 'tax'?
On the first question, the arguments were all over the map and I think the Solicitor General did a horrible job of articulating and defending the government's position. That does not mean the government's argument is weak, however. The justices seemed open to the argument that there might be situations under which the government could compel the purchase of products on the market, though they wanted to know what kind of limitation exists on Congressional power to do so. The Solicitor General utterly failed to provide an answer to this question while stammering about how the mandate isn't about creating economic activity or spurring demand. This may or may not hurt the government's case as the justices are certainly smart enough to figure out on their own what kind of limiting principle might exist, although it was bizarre when a couple of the conservative justices started comparing an individual's lack of purchase of health insurance to the choice not to consume broccoli. There are fundamental differences between the two and the Solicitor General did a poor job of explaining them.
The key, I think, is whether or not the justices are convinced that the health insurance market and the health care market are either one and the same or so intricately intertwined as to be virtually inseparable. If a legitimate separation can be made then the mandate must fall. If it is impossible to separate the two, then the mandate will stand. The question then becomes one of 'why do people purchase (or not purchase) health insurance'? If the answer is to protect themselves from catastrophic ruin in the event of unforeseen illness, the mandate must fall. The government has no power to force individuals to protect their financial futures. But, if the answer is that people purchase health insurance in order to receive (and pay for) health care treatment, the mandate has a good chance to survive. That's because the primary method of payment for health services in the United States is health insurance. The health care market is unlike any other market in the United States because even individuals who do not purchase health insurance are entitled to be treated in emergency rooms. If they don't pay for the treatment, the rest of us do through higher premiums, higher deductibles, and higher fees for service. The same is not true about the grocery market. Hungry people cannot walk into a grocery store and demand free broccoli. Plus, my refusal to purchase broccoli doesn't make the price of broccoli higher for you. If anything, it makes the price lower because of a lack of demand.
At this stage I think there are four certain votes to uphold the mandate. Those will come from Justices Breyer, Ginsburg, Sotomayor, and Kagan. There are also two almost certain votes to invalidate the mandate. Those will come from Justices Thomas and Alito. I think Justice Scalia will vote to strike it down but he could vote to uphold the mandate if he concludes that it was both necessary and proper for Congress to accomplish it's goal in the ACA. He seemed convinced that it was necessary but skeptical about whether it was proper. The unknowns are Justice Kennedy, who at times seemed opposed and at other times sympathetic, and Chief Justice Roberts. If I were to venture a guess I'd say Roberts is opposed to the mandate but open to upholding it if Kennedy can find some kind of limiting principle to Congress' power. Lyle Denniston on SCOTUSblog has an excellent take on this in his recap of the oral arguments.
The normal order of voting in conference by the justices has the chief vote first followed by the associates in order of seniority. Roberts is likely to abstain while waiting to see what Kennedy does because if Kennedy votes to uphold the mandate and Roberts votes to strike it down Justice Kennedy will get to assign the opinion. Chief Justice Roberts would probably prefer to be in the majority on this case so he can assign the opinion (or write it himself) in such a way as to make the most narrow ruling possible. In this case, he might even be able to bring Justices Alito and Scalia with him.
Of course, as I said at the beginning, oral arguments are usually irrelevant to the outcome of most Supreme Court cases. The justices have made up their minds long before the lawyers open their mouths. Much of what happens during the oral argument amounts to the justices playing devil's advocate. As Segal and Spaeth have contended for almost twenty years, Supreme Court decisions are largely a product of the justices ideological attitudes. Except, of course, when they're not.