Prepared for the Worst

06.27.12

My Supreme Court-Health Care Prediction

This is easy. I take the darkest and most cynical possible view of the conservative majority; I believe, as I've written, that they are politicians in robes (with the partial exception of Kennedy); as such, I believe that they will behave here like politicians, and they will render the decision that will inflict the maximum possible political damage on Obama and the Democrats.

That means overturning the mandate 5-4. But it means doing so narrowly, carefully, almost regretfully. In other words, they want more than anything else not to rile up liberals. Tossing the whole thing would do that. Tossing the Medicaid expansion would kinda do that. Tossing guaranteed issue would kinda do it too, and would even have reach into independents and Republicans, since guaranteed issue is so popular.

They'll want to minimize backlash, in other words--both backlash against them as an institution and electoral backlash that might help Obama and the D's. So they'll limit their overturning to the mandate. And as I say, the majority opinion will say things like gee, we are deeply sympathetic to the problems inherent in the health-care system, but regretfully, we simply can't endorse this method under our reading of the Constitution.

That way, Obama is screwed (yes--the D's and even maybe the media will try to paint that as a partial win for the White House, but it won't be in my view). And yet the majority also seems reasonable. That's the needle I predict they're going to thread. What about the law, you say? Fiddle dee dee. This is politics, pure and simple.

If there's an off chance for a more positive ruling, it's this, which struck me after I read the Arizona opinion. With regard to the "show your papers" aspect of that law that the Court upheld, it did so by saying in essence, look, we're not endorsing this exactly, and we're not NOT endorsing it; we're just saying that it has to be put into practice, and we'll see how it's actually being implemented before we can determine its validity.

That made me think, maybe they can contrive to do something similar on the mandate. We're skeptical of it. We presume against it. But until it's implemented and put into practice, we can't really say whether it's coercion or not. We have to see how it works for a couple of years before we can decide that.

I have no idea about the law behind that, but obviously these guys can say whatever they want and find the case law to back it up. That's part of the beauty of being the Supreme Court.

That's my dim hope. But my expectation is as I wrote. It's a political court and it will render a political decision, but one disguised as Solomonic and equal to the gravity of the moment. Yours?