You laughed, enchanted by my intellect

The World Has Turned And Left Me Here – Weezer

So health care reform is going to the Supreme Court this term. What is the likely result?

To some extent, speculation about this is a fool’s game. I think it’s obvious that Ginsberg, Sotomayor, Kagan, and Breyer will vote to uphold it. That is clearly what the existing precedent demands and it aligns with their political desires. Thomas and Scalia and Alito are clearly going to vote against it. So we’re really just talking about two individual people. And there’s zero chance that Roberts votes to uphold unless Kennedy has already voted that way. That is: Roberts is never going to be the deciding vote to uphold it, but he might be the 6th vote if it’s going to win anyways. On top of that, Kennedy is notoriously impossible to predict.  There is some political science work that attempts to predict this stuff, but at this stage the margin of error is quite high.

So maybe that’s the only useful thing to say.

It’s extremely difficult to make a reasonable argument that the mandate exceeds the power of Congress, given the standing precedent of things like Wickard. And the brief federalism revolution was basically shut down by Raich a few years back, so it wouldn’t just mean reversing a boatload of old precedent, it would also mean flip-flopping AGAIN on the basic question. Maybe I’m just projecting, but I have a hard time seeing Kennedy being willing to go out on that ledge.

Why am I so sure that Scalia and Alito will vote against it? After all, Scalia wrote a concurrence in Raich on the side of the national government. Well, I’m persuaded by Scott Lemieux’s point that Scalia doesn’t care about the civil remedy for domestic abuse, but is perfectly happy to let the state beat up some drug-soaked hippies. Never mind that his attempt to distinguish Raich was based on the Necessary and Proper Clause, which seems FAR more relevant here than in that case. He’ll find a way.

As for Alito, I’ve never seen much reason to think he’s got any scruples about this sort of thing. That people still insist on discussing him as if he were any kind of centrist is very confusing to me. Is there any evidence for it on anything even remotely high profile?  The article I linked to above ends with a prediction of 7-2 to uphold with Alito as the potential #7.  I will be shocked if that turns out right.

Final thought: when I posted about this two years ago, as health care was still in the run-up to passing, I dismissed the idea of the Court striking down the law as plainly absurd on its face. I still believe this to be the case…and yet here we are. So perhaps my prognostication skills are not to be trusted on this issue at all.