I follow the Supreme Court fairly closely and, I like to think, intelligently, having participated in briefing a number of cases before the Court. (As usual, my speculation is my own, and not the view of my firm). But I’m as much in the dark as everyone else on how the Court will decide any given case – indeed, the more veteran and expert the Supreme Court practitioner you talk to, the more uncertain they are likely to be in making predictions.
That said, we may as well all make our educated guesses now, while the jury (so to speak) is still out. Here, without much further explanation, I’ll offer mine, all of which will be rendered inoperative in less than 24 hours.
1. It looks as if Chief Justice Roberts will write the main opinion, possibly covering all the issues in the case. Sean Trende and Jack Balkin explain why this is so. If Roberts writes an opinion covering all four issues (bear in mind, there are only four issues in the case if the Court rules in the challengers’ favor on the Anti-Injunction Act and the mandate and severs at least some of the statute), expect a very long opinion and a whole bunch of opinions concurring and dissenting in differently-numbered/lettered subparts.
2. Judging by the arguments, the overall weakness of the Administration’s case, and the simple fact that the whole shebang remains undecided at Term’s end, I’ll be surprised if there are more than one or two votes to declare the mandate a tax that the Court can’t address until 2014 under the Anti-Injunction Act. Court may even be unanimous on that score.
3. Forced to predict, I’ll predict that the Court will strike down the individual mandate, 5-4. I can’t say I’m overwhelmingly confident in that prediction.
4. On severability, I think the most likely outcome is actually that the Court does what the Solicitor General asked in the event the mandate goes down, and throws out only the community rating and guaranteed issue provisions, probably on a 6-3 vote. That may not be an entirely principled compromise, but it at least has the advantage of being endorsed by the Administration, as opposed to leaving the Justices to decide on their own what is and is not integrally related to the mandate.
5. The enormous sleeper in the case is the Medicaid challenge. I could be wrong, but I don’t expect the Court to be willing to rule that Congress exceeded its authority under the Spending Clause here. The bad news for conservatives is that, after years of the Court warning that there are limits to how far Congress could go in using the spending power to indirectly dictate to the states things it cannot directly dictate, the Court would effectively have to concede that it will never tell Congress that it has breached that limit – you simply can’t find a more coercive program than Medicaid, which amounts to a quarter of most state’s budgets and as to which – as the states repeatedly emphasized – Congress did not even offer a Plan B for what happens if a state opts out. I expect a thundering, epic dissent from Justice Scalia on this abdication if that is where we come out.