But much of the analysis we've seen quietly assumes that the court will eventually hand down a blockbuster 5-4 ruling that perfectly tracks the political ideology of the various justices. Reuters' James Vinci suggests it may all hinge on Chief Justice John Roberts and Anthony Kennedy. At a panel last weekend at William & Mary law school, court watchers—including Dellinger—mainly agreed that this would not be a close vote: The high court would find the law constitutional. I argued last winter that the fate of the law at the high court rests less on constitutional law than on the willingness of the court's conservatives to stretch a good bit past their collective legal worldviews to strike down this law.
I remain unsure that there just are five justices at the high court eager to have the court itself become an election-year issue. I don't think Chief Justice John Roberts wants to borrow that kind of partisan trouble again so soon after Citizens United, the campaign-finance case that turned into an Obama talking point. And I am not certain that the short-term gain of striking down some or part of the ACA (embarrassing President Obama even to the point of affecting the election) is the kind of judicial end-game this court really cares about. Certainly there are one or two justices who might see striking down the ACA as a historic blow for freedom. But the long game at the court is measured in decades of slow doctrinal progress—as witnessed in the fight over handguns and the Second Amendment—and not in reviving the stalled federalism revolution just to score a point.
That's why I suspect that even if there are five justices who believe the individual mandate is unconstitutional, there probably aren't five votes to decide that question in this instant. Lyle Denniston over at Scotusblog reminds us that the court has a lot of options to forestall a showdown with the president. If the justices opt to consider the technical question raised at the Fourth Circuit—about who has legal standing to challenge the mandate in the first place—the court could dodge the constitutional question altogether until 2015, when the first penalties will be paid. It's not so much a matter of the court having to decide whether to bring a gavel to a knife fight. It's just that this isn't really this court's knife fight in the first place.