Health-Care Reform's Supreme Court Showdown

03.29.12

7 Experts Try to Read Supreme Court Health-Care Tea Leaves

From Justice Kennedy’s stance on the mandate to Solicitor General Verrilli’s questionable performance, experts weigh in on how the Supremes may rule on the health-care law.

Over the three days of argument devoted to the health-care law, the Supreme Court held the attention of Americans as it has not for more than a decade, sparking protests, debate, and prophetic huffings and puffings from pundits of all political stripes.

One of those prophesies appeared on this site two years ago, when Adam Winkler, a law professor at UCLA, predicted that the court was likely to give a hostile reception to the Affordable Care Act. Unlike many others, that prediction was borne out this week, as the court expressed much more skepticism over the health-care law than many observers expected. And yet oral arguments can be deceptively important; justices have said that they matter only 10–15 percent of the time.

However the court rules on the constitutionality of the Affordable Care Act, it will have a dramatic effect on American life, affecting how people receive their health care as well as the extent of the federal government’s power.

The decision, likely to come down in June, will also fall right in the middle of a contentious presidential election, and both parties have braced themselves for ramifications that are still unclear.

The Daily Beast queried seven law and public-policy experts on where they think the justices are likely to land.

Abbe Gluck
Professor, Columbia University Law School
New York, N.Y.

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Anti-Injunction Act: “Reading the tea leaves of the court is always a dangerous endeavor. However, after following the arguments, my prediction is, first, that the court won’t let the jurisdictional issue—the Anti-Injunction Act question—stop it from deciding the merits. It was clear that a majority of justices wanted the case to go forward and that they were going to find a way to let that happen.”

Individual Mandate: “With respect to the constitutionality of the mandate, I think that Chief Justice Roberts and Justice Kennedy both left open the possibility that they could decide either way, and so I do think the law has a chance to survive. That said, both justices were skeptical. Justice Kennedy, as he often does, expressed particular concern about the potential infringement on personal liberty.”

“If the mandate is upheld, I think the ruling will be a very narrow one—either based on the specific and unique facts of the health-care market or possibly even based on the idea that the mandate falls under Congress’s taxing power. The tax rationale may be one way to get consensus among justices, like Roberts and Kennedy, who might be adverse to an opinion that offers a broad reading of the Commerce Clause.”

Severability: “If the mandate does fall, however, the big question that would remain is whether the rest of the statute should go down with it. The majority of the court seemed highly skeptical that should be the result, and instead focused more on whether the new regulations on insurers must go with the mandate.”

Glenn Cohen
Professor of Law, Codirector of Center for Health Law Policy, Biotechnology, and Bioethics, Harvard University
Cambridge, Mass.

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Anti-Injunction Act: “I think you’ll get 9–0 finding that the act is not a bar, but I think you’ll get a split of opinion on why not. There will be some justices who find that the act just doesn’t apply, and some who think it does apply but that the solicitor general can waive it, and I don’t know how many will be in each camp.”

Individual Mandate: “I think it is going to be very close and hard to predict. Before the argument I would have thought that the government was going to win. After the argument I think it’s more likely than not that they’re going to lose. Kennedy and Roberts are the only two people the government could pick up. Kennedy in particular is likely to be the key voter, and of four or five questions he asked in oral argument, all but one were problematic for the government.”

Severability: “The seriousness with which the justices took the severability issue was another tea leaf that the mandate may not be upheld. I think that probably there will be a split court, maybe 5–4, but that’s hard to predict as well. I think the government had a hard three days. I don’t want to fault him too much, but I don’t think Solicitor General Verrilli was as effective as he might have been. I think he got a lot of assists from the more liberal judges in the course of the argument.”

Medicaid Expansion: “Although the court pushed harder on the government than one might have expected, I still don’t think they’re going to strike down the expansion.”

Abigail Moncrieff
Professor of Law, Boston University School of Law
Boston, Mass.

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Anti-Injunction Act: “The argument that the Anti-Injunction Act prohibits the court from hearing the constitutional challenge to the individual mandate got almost no sympathy on the court. Although the justices had different theories about why, everyone seemed to agree that the court can hear the case now.”

“My first thought is anybody who is real confident about how this is coming out shouldn’t be
listened to.”

Individual Mandate: “This argument was quite hard to read. The one thing I can say for sure is that Justice Scalia is extremely annoyed that Congress deigned to pass an individual mandate. Given Justice Scalia’s apparent position, Justice Kennedy will be the decisive vote. Justice Kennedy is highly unpredictable, but I do think he’ll feel a lot of pressure not to disrupt Congress’s judgment here and might therefore vote with the liberal bloc on the court to uphold the mandate.”

Severability: “I’ll be surprised if five justices vote to invalidate the entire law. My best guess is that Justices Scalia and Thomas will want to invalidate the whole thing but that everyone else will want to sever the individual mandate in some way, probably together with at least the guaranteed issue and community rating provisions.”

Medicaid Expansion: “Here again I think the decision will be Justice Kennedy’s. The oral arguments were not particularly illuminating, but I have a hard time understanding why the justices would have granted certiorari on the Medicaid expansion if they were not inclined to adopt some kind of constraint on the spending power. Of course, cert requires only four votes while upholding requires five, so it’s possible that the vote will be 5–4 to uphold, with Kennedy joining the liberals. Kennedy, though, seemed very concerned about the failures in political accountability that arise when the federal government forces the states to do things.”

Hank Greely
Professor of Law, Stanford University Law School
Palo Alto, Calif.

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Anti-Injunction Act: “My first thought is anybody who is real confident about how this is coming out shouldn’t be listened to. It’s clearly important there’s no real precedent, and the one thing I would take from the oral argument is that it is going to be close. It’s highly unlikely the Anti-Injunction Act will cause them to say ‘never mind.’ I don’t think the court is going to put us through all this and then say ‘never mind.’”

Individual Mandate: “It seems to me there are three plausible outcomes. I think the most plausible is it is upheld 5–4 or 6–3. If Justice Kennedy goes for constitutionality I can see Roberts also going for constitutionality. I can also see it going 5–4 the other way with Justice Kennedy voting to strike. My gut says 60–40 [that the mandate will be upheld].

“This is really speculative; I don’t know Justice Kennedy. I’ve been in rooms with him. I don’t think he’ll want to be remembered as the vote that struck down health reform. He’s been on the court 24 years now, and this will clearly be an important thing, and if you look at Kennedy on a variety of issues—on Roe v. Wade, on gay rights—I get the feeling that he doesn’t want to be on the wrong side of history. And whatever you think about our current health-care system, unless you’re Justice Scalia, our health-care system is going to change.”

Ilya Shapiro
Senior Fellow in Constitutional Studies, Cato Institute
Washington, D.C.

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Individual Mandate: “I think it’s likely they’ll strike down the mandate. It was stunning the questions that Kennedy leveled at the solicitor general, and that made me feel good on this side … Fundamentally the solicitor general could not define a limiting principle. He’s an experienced lawyer, he obviously anticipated that question, and yet he didn’t really have a polished answer. And that implied that there isn’t a good answer.”

Severability: “They really struggled on where they could draw a line between or among provisions, and I think it is more likely than not that they will strike down the entire law … As Scalia put it, it is very rare to take the guts out of a statute. There are things in there that clearly don’t depend on the individual mandate, but then you’re entirely rewriting the law.”

“I think I wasn’t really surprised by much of anything I saw. It confirmed my intuitions going in. It doesn’t surprise me that you have an academic elite and the media who were expecting this to be an easy case for the government because they don’t take arguments seriously about there being limits on what the government can do. When the Supreme Court takes it up, that means it is important and not easy.”

Amitabh Chandra
Professor of Public Policy, Kennedy School of Government, Harvard University
Cambridge, Mass.

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Individual Mandate: “I think the thing that’s on everyone’s mind is the individual mandate, because Democrats do think it is the heart of the legislation. However, pushing back against that view is my view that the mandate is really just a toothless tiger. Even if the mandate is upheld, our ability to force people to purchase health insurance is a lot less than advocates of the mandate have been claiming.

“I think if you are just paying attention to what happened on Tuesday by going through the transcript, it may appear it will go 5-4 against. But I don’t think it will go that way because this harsh questioning by the conservative centrists, Justices Kennedy and Roberts. I think these guys are sort of testing out their arguments.

“I think with Justice Kennedy, my guess is his view of it will be that the individual mandate is constitutional but that doesn’t open the door to all kinds of other purchases. Yes, it’s constitutional, but it’s really just the mandate. You can’t come along and force me to buy car insurance as well.

“Justice Roberts, on the other hand, cares deeply about the Court. He’s going to be the chief justice of the United States Supreme Court of the next 25 years. This is going to be a signature decision, and I don’t think he wants a signature decision to be a wishy-washy 5-4 along ideological lines.”

Wendy Parmet
Associate Dean, Northeastern University School of Law
Boston, Mass.

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“I think it’s always dangerous to read tea leaves and it’s easy to make too much of the oral arguments, but without question the arguments had to be very troubling for the Obama administration, and more broadly for people who support the Affordable Care Act. I think what’s equally important is to see just how arguments that were widely, widely rejected as absurd months ago by a very broad consensus of constitutional experts—including, for example, Ronald Reagan’s solicitor general, Charles Fried—were taken very seriously, indeed, very sympathetically, by many of the justices. And I think what we’re seeing is, I can say, a very radically conservative court, some members of which seem intrigued by a constitutional discourse that would take us back to the pre-New Deal 1930s, a sort of constitutional libertarianism that would, I think, disable the country from functioning in the 21st century.”

“Chief Justice Roberts, as chief justice, has to think not simply about this decision but about the impact of the court, and how this decision will affect the court’s stature and credibility. I think Justice Kennedy clearly was intrigued by and found himself drawn to the libertarian arguments that Paul Clement made, but he’s also a pragmatic justice, and he saw the other side of the issue with the mandate. I think he’s going to be looking at ways to thread the needle, coming out with a decision one way or another that’s not too broad.”