Wednesday, March 28, 2012

Will the Supremes' ruling on "Obamacare" be pure politics?

David Leonhardt at New York Times:
Many legal scholars, including some conservatives, have been predicting that the Supreme Court will uphold the 2010 health care overhaul. But after Tuesday’s arguments, when several justices asked skeptical questions about the heart of the law, a political lens seemed relevant, too. 

When Congress passed the law, 9 out of 10 Democrats voted for it, while not a single Republican, in either the House or the Senate, did so. In the lower courts, judges appointed by Democratic presidents voted mostly — but not entirely — to uphold the law. And judges appointed by Republican presidents voted mostly — but not entirely — to overturn at least part of it. 

It is obviously too early to know what the Supreme Court will do, despite the rush of commentary after Tuesday’s much-watched hearing. But skeptical questions from the bench are often an indicator of how justices will ultimately vote — and many court experts expressed surprise at the apparent agreement among the conservatives, including Justice Anthony M. Kennedy, the likeliest swing vote.

Justice Kennedy, along with Justices Samuel A. Alito Jr. and Antonin Scalia and Chief Justice John G. Roberts Jr. all asked questions suggesting that they had a problem with the constitutionality of the mandate requiring most Americans to buy insurance. Justice Clarence Thomas, as usual, did not ask any questions, but he is widely expected to vote to overturn the mandate. 

All five of those justices were appointed by Republican presidents, while the four justices expected to vote to uphold the health care law were all appointed by Democrats. This is the first time in at least 50 years that the decisions issued by the justices have frequently split along directly partisan lines, based on the party of the president who appointed each member. 

Both sides, of course, will say that their votes are based only on the law, and both sides can indeed find constitutional precedent to support their arguments. Yet if there is a higher legal truth about the law’s constitutionality, the judges who have ruled on the case so far have yet to agree to it. 

Outside experts seem to lean toward viewing the law as constitutional, although they are far from unanimous. In a recent poll, Supreme Court lawyers and former clerks said on average that they thought there was only a 35 percent chance of repeal. “I don’t think this case will be nearly as close a case as conventional wisdom now has it,” said one respondent to the poll, jointly conducted by Republican-leaning and Democratic-leaning groups. “I think the court will uphold the statute by a lopsided majority.” 

Other scholars believe the case is a closer call. 

The court may well conform to the experts’ predictions and uphold the law when its ruling comes out, likely in June. Justice Kennedy does sometimes side with the liberals, while Justice Roberts has made clear his discomfort with partisan splits on the court. Mr. Roberts and Mr. Kennedy have also issued rulings that indicate they may find the mandate to be constitutional. 

At this point, however, it should not be much of a surprise if the court splits along political lines, much as it did in the Bush v. Gore ruling in 2000. 

For more than two years now, Democrats have generally voted for the health care overhaul, and Republicans have generally voted against it. When the bill was before Congress, Democrats had a majority in the House and the Senate and occupied the White House, too. But now the case is at the Supreme Court, and the majority there is Republican.

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