Last week, the Supreme Court announced its decision to grant certiorari on the various challenges to the health care law. Since then, the coverage has been relentless, and promises to continue (these include calls for recusal and televising of the oral argument, as well as the usual substantive legal commentary on the law itself and what the justices must do -- according to Randy Barnett, for example, “It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law.”)
The basic legal argument is as follows, courtesy of Jamal Greene:
The administration has made a Necessary and Proper Clause argument in the Obamacare litigation, but commentators have been too fixated on vegetables to focus on it. The goal of the health insurance mandate is to prevent insurance companies from discriminating against people because of pre-existing health conditions.
No one in these cases disputes that Congress has the power, again based on its authority over interstate commerce, to forbid this kind of discrimination. But doing no more than making it illegal for insurers to discriminate would not be effective, because making insurers cover high-risk individuals would require them to raise premiums so much that no one could afford to buy insurance.
Congress could have responded to this challenge by raising everyone’s taxes and using the revenue to provide single-payer government health insurance. Instead, it chose to require that Americans purchase health insurance but gave them the freedom to choose their own private plans. Doing so expands the pool of insured people enough to enable insurance companies to cover high-risk individuals without breaking the bank.
Anyone can argue that the individual mandate is a bad idea, but no one can argue that it isn’t rationally related, indeed intimately related, to Congress’s legitimate objectives.
Persuasive as this argument appears to be, I just don't think the case hinges on whether the justices will find it similarly persuasive. This is not really a case about law, the limit-setting function of the justices and the rote application of precedent. This is not a case, in other words, about the power of Congress to force people to eat broccoli.
Does anybody really believe that the justices will decide this case in accordance to their best reading of the commerce clause power? Or else, that established precedent offers clear answers to the questions presented?
In other words, does anybody truly believe that the Court is about to just call "balls and strikes" and do little else?
Instead, the case will be about the justices' personal preferences and their views about the world in which we live. But there are complications. As Adam Liptak notes, this is a case that "will help define the legacy of the Roberts court," a blockbuster case sure to capture the nation's attention. This is why taking the case in no way suggests anything about the Court and its willingness to enter into this debate prior to the upcoming presidential election. In the face of a circuit split and a circuit court striking down a federal law, the Court could not present a picture of timidity. They could always duck the issue later.
So what does a strategic account suggest in this case? According to Michael Bailey and Forrest Maltzman, a decision in accordance to ideology alone suggests a 5-4 opinion striking down the law. But they take their analysis further and consider the justices' ideology as well as their "tendency" to uphold precedent. In this vein, they pit United States v. Lopez and United States v. Morrison against Wickard v. Filburn and Gonzales v. Raich. Their results are as follows:
The wildcard here is, unsurprisingly, Justice Kennedy: the probability that he would strike down the law decreased to a 46% probability. Chief Justice Roberts and Justice Alito also decrease, but not as much as Justice Kennedy. Taken together, and as the second graph shows, the probability of overturning the law decreases to 30%.
Bailey and Maltzman conclude that the Court will uphold the law by a 6-3 or 7-2 vote, with Chief Justice Roberts siding with the moderates in order to take control of the opinion writing away from Kennedy. Interestingly, they conclude that "[p]olicy motivations won’t be irrelevant, but score this one for law."