Tomorrow morning, the Supreme Court of the United States will most likely announce its ruling on the challenges to the Patient Protection and Affordable Care Act or “ObamaCare”. Many people on the left of the political spectrum have said, sometimes not in so many words, that if the Court rules against the PPACA, it will be because of its supposed conservative political leanings. In other words, that the conservative Justices rule based on politics rather than law.
However, I did notice a pattern. Look at all the commentary on the case and especially predictions on the way individual Justices will vote on the minimum coverage provision. (individual mandate) Everyone is looking at Justice Kennedy as the swing vote. Justice Roberts’ vote is also considered to be largely up for grabs. There are also many who read Justice Scalia’s opinion in Raich and wonder if he might vote to uphold the mandate. I’ve even seen speculation that Justice Alito might vote to uphold the mandate. Of all the conservative Justices, there is only one whose vote is a sure thing: Justice Thomas. On the other hand, I have yet to hear anyone claim that any of the liberal Justices might do anything but vote to uphold the mandate.
Sure, one could argue that this is because the mandate is clearly constitutional and that the liberals are just the sane people in the room, but that story has been quite weak since courts started ruling against the mandate’s constitutionality. Now, I’m not arguing that the liberal Justices are biased. They have a judicial philosophy and interpretation of the Constitution that is favorable to the mandate and I don’t doubt their honesty. But I find it quite odd that the liberal Justices are said to be impartial and yet are also believe to be impossible to sway with arguments while the Justices who might be influenced by arguments are said to be ruling based on preconceived political agendas.
For what it’s worth at this late hour, my prediction is 5-4 ruling the minimum coverage provision unconstitutional (though I’m close to 50-50 on this issue). The community rating and mandatory issue provisions will fall with the mandate, but the rest of the act will stand. The Medicaid expansion will be held up 8-1 with Justice Thomas dissenting. Alea Jacta Est.