FantasySCOTUS health care law predictions, part 4

December 13, 2011

SCOTUS Clipboard(Editor’s note: This is part 4 in a five-part series of FantasySCOTUS predictions on the outcome of the health care law case. Here’s part 1.  Here’s part 2. Here’s part 3.)

Last week, I only covered six of the Justices in my prediction on how the Supreme Court will rule on the constitutionality of the individual mandate.

That’s because those six were the easy (or, at least, easier) predictions, and the last three – Justices Kennedy and Alito, and Chief Justice Roberts – will be more difficult.

I’ll begin with Samuel Alito.

Given Alito’s high agreement rate* with Chief Justice Roberts, it may be easy to lump the two together.

There have been some notable divergences in opinion, though.

Snyder v. Phelps (the Westboro Baptist Church case) and U.S. v. Stevens (the animal cruelty video case) are the first examples, which both found Alito as the sole dissenter from a majority opinion written by Roberts.

Samuel AlitoEvery other Justice voted in favor of expansive free speech rights, invalidating laws in the process, and as unpopular as the majority decisions were in these cases, they probably applied the law correctly.

Why did Alito decide otherwise?

It’s unlikely that he holds a narrow view of First Amendment rights, considering he voted with the majority in the infamous Citizens United v. FEC.

Instead, I suspect that Alito was emotionally swayed by the facts of the cases.

Such may also be true for Gomez-Perez v. Potter, in which Alito, writing for the six Justice majority, implied an anti-retaliation clause into the Age Discrimination in Employment Act (the case involved a postal worker who was harassed by her employer after filing an age discrimination claim).

Does that mean Alito will be similarly swayed by the facts of the health care law case?

Probably not; the facts of the case just aren’t on the same personal level as the ones mentioned above.

Consequently, given his past voting trends, Alito will probably vote with Roberts.

So how will Roberts go?

Chief Justice John RobertsRoberts has been a reliable conservative with perhaps one exception: he prefers to stay within the bounds of existing law and precedent.

If Judge Vinson’s or Hudson’s federal district court decisions overturning the individual mandate were commonplace or even in the majority of other decisions, I could safely say that Roberts (and thus Alito) would rule the mandate unconstitutional.

However, that isn’t the case; instead, the majority of court decisions on the individual mandate have found it constitutional.

Notably, two conservative judges have done so – Jeffrey Sutton in a concurring opinion to Thomas More Law Center v. Obama and Laurence Silberman in Seven-Sky v. Holder.

Silberman in particular is significant since he has been a well-known conservative in Washington for 35 years, and is a friend of Clarence Thomas.

This doesn’t mean that Roberts is sure to rule in favor of the mandate, but I believe that it makes him more likely to do so.

A trait of Roberts’s that provides the final piece of the puzzle is his desire to build consensus, which will hinge the Chief Justice’s decision on that of Kennedy’s.

How Kennedy will swing his vote has, of course, everyone wondering; when you review his voting record, though, the mystery dissipates.

His concurrence in U.S. v. Lopez makes it clear that he believes Congress has vast powers under the Commerce Clause to regulate that which is both “interstate” and “commerce” (i.e. economic), which the individual mandate purports to do.

Further, his joining with the majority in 2005’s Kelo v. New London reveals at least an acceptance of broad government powers in economic matters, and Kelo along with 2011’s Brown v. Plata demonstrates judicial pragmatism (as his reputation often attributes to him).

Anthony KennedyWhy is pragmatism important?

Because, as Kennedy is no doubt aware, the U.S. health care market pre-PPACA was unsustainable long-term.

While it remains to be seen how successful the health care law will actually be in remedying this, the Court’s striking down the individual mandate and (for reasons I’ll talk about in the next post) the entire law with it may be undesirable to Kennedy.


Because one of two things will likely happen.

Should Democrats gain majority control of Congress in 2012 or later (assuming the party retains control of the White House), an even more liberal health care reform could emerge – one that is guided, and thereby sanitized by SCOTUS guidelines in the ruling.

If not, political deadlock will likely prevent any actual reforms – liberal or conservative – from emerging, leaving the U.S. health care market to eventually implode under the former status quo due to high costs to consumers and employers alike.

Therefore, Kennedy will vote to uphold.

So, what’s my conclusion overall?

To me, it’s a toss-up between a 5-4 and a 7-2.

I’m leaning more towards the 7-2, with Roberts and Alito joining to push for new limits on congressional Commerce Clause authority.

Florida v. Dept of HHS (Is Mandate Unconstitutional?)

Question Presented

Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.

Lower Court’s Decision

The Court of Appeals of the 11th Circuit held that Congress lacked the power to enact the individual mandate. A vote to AFFIRM means that YES, the mandate is unconstitutional. A vote to REVERSE means that mandate is constitutional.

My Prediction

REVERSE 7-2 (Majority:  Roberts, Alito, Kennedy, Ginsberg, Breyer, Sotomayor, and Kagan; Dissent: Scalia and Thomas).

Interested in FantasySCOTUS? Check out its website!

Also check out Reuters’s new website: Case by Case: The Supreme Court 2011-2012 Term

*According to SCOTUSBlog, Alito’s agreement rate with Roberts was 96% in October Term 2010, the highest of any two Justices.  In past terms, the two’s agreement rate consistently was among or was the highest.