Health care repeal: Trying to predict how the Supreme Court will rule.

The law, lawyers, and the court.
Feb. 2 2011 5:32 PM

Gaming the System

At the Supreme Court, could legal precedent be less important than popular opinion?

Anthony Kennedy. Click image to expand.
Justice Anthony Kennedy

Articles of faith, as a rule, don't change every few months. And yet, just nine months ago, it was an article of faith among court watchers that President Obama's health care reform plan would be upheld at the Supreme Court by a margin of 7-2 or 8-1. Today it is an equally powerful article of faith that everything rests in the hands of Justice Anthony Kennedy in what will surely be a 5-4 decision. What changed between last March and last Monday?

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

To review: When the first lawsuits were filed challenging the law in March 2010, the conventional wisdom was that they were little more than a Tea Party stunt. "Several constitutional law experts said this week that it is somewhere between unlikely and hard-to-imagine that the Supreme Court would strike down the new healthcare law," wrote David Savage at the Los Angeles Times. He quoted George Washington University law professor Orin Kerr, a former Kennedy clerk, saying that "there is a less than 1 percent chance that the courts will invalidate the individual mandate." In Newsweek in September 2010, Stuart Taylor quoted Walter Dellinger, acting solicitor general under President Clinton, predicting an 8-1 vote at the high court, and Tom Goldstein, another prominent court watcher and litigator, calling for a vote of 7-2.

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Fast forward to this week. As my colleague David Weigel put it Monday: "The fate of health care reform is where it was yesterday—in the hands of Supreme Court Justice Anthony Kennedy." The Wall Street Journal agreed, sighing, "As with so many contentious issues in American life, destiny appears to have appointed [Kennedy] the ultimate arbiter of the constitutionality of the linchpin of this new law: the individual mandate."

Now, the composition of the court has not changed since last year. Nor has the meaning of the Commerce Clause, or the decades of precedents interpreting that doctrine, or the words of the Affordable Care Act itself. The only thing that has shifted between the filing of the Obama health care suits and Judge Roger Vinson's decision finding the entire bill unconstitutional is the odds. We went from "a less than 1 percent chance" of the suits succeeding to their success being determined by a coin flip in Anthony Kennedy's chambers.

Putting aside the question of whether it matters what court watchers think—or whether the new odds should make any difference—it's astounding to witness the conventional wisdom shift so dramatically and so rapidly. It took years for court watchers to take challenges to the collective-rights theory of the Second Amendment seriously. It's taken just weeks for them to come to believe that the fate of the health care law may be decided by a single vote.

To those in the business of making predictions about the Supreme Court justices, one thing that did change was a smoke signal sent up by Justices Clarence Thomas and Antonin Scalia last month in a passionate dissent from the court's refusal to hear a case from the 9th Circuit Court of Appeals. Alderman v. United States involved the right of the federal government to criminalize a violent felon's purchase of body armor. And as Andrew Cohen explained it, the two justices weren't obligated to publish a lengthy dissent, spelling out—complete with references to Hershey's Kisses (the new broccoli?)—their view that the Commerce Clause does not allow the federal government to make such a regulation. Their small treatise on the limits of the Commerce Clause's power, Cohen wrote, "confirms to the world that no more than seven votes on the Supreme Court are still in play over the constitutionality of the federal health care measure."

Court watchers have long argued that Scalia cannot possibly square his vote (indeed his own words) in the 2005 case of Gonzales v. Raich with a vote to strike down health care reform. Once they read the Thomas/Scalia dissent in Alderman, they had to swallow hard. In Raich, Scalia agreed that Congress could regulate marijuana that was neither purchased nor sold in any market but grown for medicinal reasons at home. "The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce," Scalia wrote. "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." He added that "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce."

These words matter a lot to supporters of health care reform. But it's no longer clear how much they matter to Justice Scalia.

Simon Lazarus has a thoughtful post about all the ways in which the court's more conservative justices—not just Scalia but alsoKennedy and Chief Justice Roberts—"will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional." Reading Raich against the Alderman dissent, I am not sure all the justices are terribly bothered at the prospect of performing such gymnastics. Supreme Court reporters like to believe that the justices are invariably hemmed in and pinned down by their prior decisions, and in a perfect world they might be. But if we learned anything at all from Bush v. Gore, it's that in landmark cases with huge symbolic stakes, justices on both sides of the aisle can get all kinds of creative.

If that is the case, then in the coming months we should pay less attention to the words of Raich and more to the political scientists and judicial behavior theorists who have a lot to say about how justices decide cases. What really changed between last March and this week is that in making predictions about what happens to health care reform, we have almost entirely stopped talking about the law or the Constitution and begun to think solely in terms of strategic judicial behavior.

Court watchers on both sides of the debate seem to agree that Vinson's opinion was rooted more in his convictions about the need to restrain federal overreaching than in the court's modern Commerce Clause precedents. The question now seems to be less about whether the justices can find a way to strike down the law if they so choose—they can—than whether they have the political stomach to do it.

I am not an expert on judicial stomachs. But it seems to me that once you start thinking strategically about how health care reform will fare at the Supreme Court, pretty soon you arrive at some serious questions about the continued legitimacy of the court, judicial responses to public sentiment, and other matters that have far more to do with social psychology than Wickard v. Filburn.

Everyone would like to believe that the kind of constitutional issues presented in these health care suits are clear and specific. But they are precisely the sort of wide-open normative inquiries that may tempt even great and fair jurists to have a little extra-textual fun. "American constitutional lawyers, whether practitioners, academics or judges, seem to feel relatively few genuine constraints in the kinds of arguments they are willing to make or endorse," professor Sanford Levinson has written. "It is, I am convinced, harder to recognize a frivolous argument in constitutional law than in any other area of legal analysis."

If the odds of success for the health care challenges have tilted in recent months, it's not because the suits themselves have somehow gained more merit. It's because the public mood and the tone of the political discourse have shifted dramatically—emboldening some federal judges willing to support a constitutional idea whose time, in their view, has finally come. Whether this sea change will affect the Supreme Court remains to be seen. At least on paper, the Supreme Court is immune to whatever the odds makers are saying about the law's chances. If recent weeks have shown us anything, however, it's that what's on paper doesn't matter as much as we think it does in the nation's courts.

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