Wednesday, June 27, 2012

Reading the Health Care Tea Leaves


Are there clues to what the Supreme Court ruling will be on President Obama's Health Care Plan? Possibly.

Most legal prognostications revolve around the fact that Chief Justice Roberts seems to have put himself in control of the Health Care verdict. Is that because Roberts hopes to salvage the tarnished legacy of the Court by handing down another reasoned impartial verdict? Or is it just that Roberts really has just been "bought out" by Big Pharma and wants personal credit for a huge Obama smackdown that will further damage his chances for reelection? Are there clues within the Immigration Ruling? Does the snidely tone of Scalia's dissent mean anything?

It's really a random crap shoot, and we might as well consult the Magic 8-Ball, but here are some of the possibilities predicted in the media:

The Hill calls Chief Justice Roberts the "Player of the Week."
Unlike Justice Antonin Scalia, Roberts appeared even-handed during oral arguments on the health law in March.
Democrats also noticed that Roberts sided with Justice Anthony Kennedy and liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor on the court’s ruling on Arizona’s border-security law.
House Minority Leader Nancy Pelosi (D-Calif.) has predicted the health overhaul will be held up on a count of 6-3, which would probably mean Roberts and Kennedy joining forces with the left-wing justices.
Still, the administration did not perform well during oral arguments and most legal experts expect the court to strike down all, or some, of the law.

Here's an assortment of tea leaves from ABA Journal:
The ACA Litigation Blog says a Roberts opinion is likely “marginally heartening to the challengers.” Forbes, on the other hand, says a Roberts opinion likely means the health law’s insurance mandate will be overturned.

Some experts who talked to Politico saw significance in the fact that Roberts joined Kennedy's opinion in the immigration case. One of them is George Washington University law professor Jeffrey Rosen. "The nationalism in the Arizona case might be a harbinger of similar deference [to the federal government] on health care,” Rosen said.

But SCOTUSblog founder Tom Goldstein told Politico it would be "totally wrong" to see a link between Roberts' stance in the immigration and health law opinions. “They’re very different cases," Goldstein said. "There are overlapping themes about states’ rights, but the federal immigration power is not the same as federal commerce power


Reuters: A Hint on Health Care?
Based on his past decisions and withering remarks from the bench during oral arguments, it's almost a foregone conclusion that Scalia would vote to strike down at least the core provision of the healthcare law that requires most Americans purchase to health insurance. Justices Samuel Alito and Clarence Thomas, who wrote separate dissents in the Arizona immigration dispute Monday, are likely to be in that camp as well.
Roberts wrote no separate statement on Monday, a move that showed solidarity with the Kennedy majority. In addition, he likely is focusing on the healthcare dispute to be unveiled Thursday.
One thing is known: Roberts is concerned about the Supreme Court's place in history. He has spoken about the need to preserve the integrity of the bench in deeply polarized Washington and has touted the value of unanimous or near-unanimous opinions.

And finally, here's an interview with Laurence Tribe, professor at Harvard Law School, in which he says he believes the Health Care Law will be upheld. Via MSNBC

Laurence Tribe: I do think that the Court will surprise a lot of people when it probably upholds the affordable care act in a decision by Chief Justice Roberts .

Chris Jansing: You think it will be upheld in its entirety?

Tribe: I think it will be upheld in its entirety. Of course I can be wrong. Everybody can be wrong, I can be wrong but I do think it will be upheld. I do think that will be a partial antidote for the way people felt, not only after Bush versus Gore, but Citizens United, and other cases where the Court has reached further than it needed to to grab onto issues that were the middle of the political battle and then often not to act in a particularly judicious way. I think Justice Scalia in particular ought to consider the harm to the Court as an institution when he indulges his famous wit in order to stab the President.

Jansing: There are a lot of people who have written that they are concerned about the perception of the Court. In terms of its popularity it is down in the 40s, the most recent polls have shown that the American people have concerns about the Supreme Court being split much the way that America is divided politically. Are their concerns justified?

Tribe: I think justified to some extent. The Court, in a nation like ours where political and legal issues are mixed up and often intertwined, is often criticized. The people on the losing end often say that it was just politics but I think it's the Court's responsibility to act like a Court, to not reach out to issues not presented by the case, to not make comments about a recent press conference the President holds just to make a political point. When that happens it is not simply a matter of the law being politically charged but a matter of the Court being politically unwise.

It's critical that we not lose faith in our institution, bad enough when people, only 9%, one wonders who they are, have faith in Congress but when people lose faith even in Judges who are honestly trying to do a good job, then I think that endangers the institutional stability of the country.

Jansing: As someone who knows Justice Roberts , do you think he has, as has been reported, great concerns about the Court being viewed as too politicized, and his job to somehow right it?

Tribe: Well, I think he is certainly committed to the idea that the Court should-recognized as an institution that, as he put it during his confirmation hearings, is a kind of neutral umpire. There is no such thing as total neutrality when it comes to politically charged issues like abortion and the structure of political campaigns, but at least it's important for the judges not to basically take off their -- take off their robes and allow themselves to simply shoot off at the mouth, as some of them have begun doing. And I think that the Chief Justice is likely to be concerned about the place of the Court in history and is not likely to want the Court to continue to be as deeply and politically divide. That doesn't mean he will depart from his quite conservative philosophy. You can be deeply conservative and believe the Affordable Care Act is completely consistent with the United States Constitution, and I think that is most likely to come out on Thursday.

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