Tag Archives: Supreme Court

The “Hypocritic” Oath: What The Roberts Ruling Says About How Courts Function

Professor Murray Dry, my Middlebury colleague and an excellent legal scholar, takes issue with portions of my recent posts regarding the Roberts Court’s ruling on the Affordable Care Act (ACA).  Murray writes, “I want to quibble a bit over your statement that ‘the Supreme Court is a political institution….’ In light of the statement in your previous blog, to the effect that ‘Roberts’ decision is best understood institutionally, in terms of its implications for the Supreme Court’s status and independence,’ rather than in terms of the ‘attitudinal’ and ideological approach to the Court, would it not be more consistent with your full position if you were to add ‘in part’ in your sentence about the Court as a political institution?  After all, the institutional interest that you identify with the Chief Justice depends on the Court’s being perceived as something more than another political branch of our federal government, and perhaps that perception is best produced by the Court’s acting in a judicial manner.  In this case, that means giving Congress the benefit of the doubt on the less coercive of two legislative powers.”

In order to respond to Murray’s main point regarding the Court as a political institution, I put aside for now the question of whether Roberts actually gave Congress “the benefit of the doubt” or – as Jack Goodman suggests to me in a separate email – he instead substituted his own interpretation of the Constitution for Congress’ (much to Kennedy’s chagrin).  Murray raises an excellent point – if Roberts’ goal in upholding the ACA was in part to create the perception that the Court was above partisan politics, then didn’t he act in what Murray describes as a less political and more “judicial manner”?  Indeed, isn’t it in the Court’s political interest to act “judicially” as a more general rule of thumb?

My response is that I think Roberts was, in fact, acting quite politically in trying to create the perception that the Court, in upholding the ACA, ruled judicially, without regard for partisan politics.  In short, finding a constitutional basis to support ACA was in the Court’s institutional interests, and thus good politics. This is not to deny, however, Murray’s notion that there was an element of “judicial” reasoning in Roberts’ ruling as well.  After all, his justification for upholding the individual mandate was rooted in his reading of constitutional law.  I don’t think his detailed footnoting of the relevant case law was mere window dressing.

In short, Murray is right – there are elements of both political and judicial reasoning in Roberts’ argument.  In making this claim, I hew closely to the argument advanced by my former Harvard colleague and now professor of law at Syracuse University Keith Bybee in his book All Judges Are Political – Except When They Are Not.  In the book, Bybee takes note of an apparent contradiction in public opinion: most surveys show that Americans believe that rather than make decisions on the basis of some independent and commonly understood set of legal principles, judges at all levels instead substitute their own political preferences when rendering judicial rulings.   And yet, these same surveys indicate that most people believe that judges can rule “impartially” to reach decisions based on a reasonable reading of the law, separate from their own personal preferences.  (For what it is worth, when studying judicial decisions, scholars find support for both views.) Indeed, consistent with Bybee’s argument, note that most people continue to hold the Supreme Court in higher regard than the Presidency or especially Congress. How can we reconcile this apparent contradiction?   Bybee’s answer:  We can’t.  Or, more accurately, we shouldn’t try.  In fact, he argues that the stability of the judicial system depends on people embracing both perspectives simultaneously.   As he writes elsewhere on this topic, “The resulting system endures not in spite of the contradiction between instrumental action and impartial principle, but because this contradiction suits the law to the people who are governed by it. This arrangement is not necessarily connected to justice. The judicial process is stable because it recognizes and responds to competing human needs, not because it ensures that that we live in a fair society….Thus the law is made to serve different purposes: on one hand, the law is pressed into service by interested parties trying to solve their problems; and, on the other hand, the law is shaped into a rational structure in order to give ‘the story of government’ meaning. The law operates in both registers at the same time, even though they point in incompatible directions.”

The notion that judges clothe their politically-driven decisions in the rule of law in order to render those decisions more acceptable may struck some as giving off more than a whiff of hypocrisy.  Why not recognize that the Courts are political actors and treat them accordingly by, for example, making judges stand for election, or at least have them subject to periodic recall?   (In fact, that is standard practice in some states.)   Bybee’s argument suggests that we are better off by viewing the Court as both political and judicial, rather than trying to push our understanding to either extreme.  By way of analogy, consider the rules of courtesy that govern how we interact with one another.  When you greet me by asking, “How are you doing?”, you do not expect me to answer with a detailed recitation of the current state of my life – the bad ankle, the endless bluebooks, the overwhelming workload, the car repairs, and don’t get me started on the Roger Clemens’ decision!  Instead, common courtesy dictates that I respond with a simple summary statement, such as “I’m fine.  And you?”  Nor am I insulted by your expectation that when you ask how I am, you really don’t want to know, at least not in detail.  We both understand that this exchange serves a purpose – it is a common courtesy that although in some sense hypocritical, nonetheless greases the wheels of social interaction in a way that makes us all get along.  We may sometimes wish that people would do away with these little niceties, and instead always speak the truth.  (Yes, in fact that haircut was a dreadful mistake! What got into you?!) But, shorn of the norms of courtesy, our social system would break down in short order.

So it is with our understanding of the Courts.  Roberts’ ruling was almost certainly political, in the sense that it strengthened the perception that the Court is, in fact, a judicial body – not a partisan one.  But that sleight of hand – hypocritical though it may seem – is also a fundamental reason why we abide by the “rule of law”, and why we continue to view the Court more favorably than we do other political actors.

Did Roberts Outmaneuver The Liberal Justices?

In the world of politics, there are always two stories – what actually happened, and then what the media says happened.  We are seeing this now, in the media analysis of the Roberts Court’s ruling last Thursday regarding the individual mandate and Obamacare. Most of the major Sunday talk shows devoted much of their programs to a discussion of the ruling, and those discussions were largely dominated by two media memes.

The first is an emerging story, first broached by Paul Campos in this Salon article and also by economist Brad Delong, that Roberts was poised to strike down the mandate in its entirety, but backed down at the last minute in order to avoid the partisan repercussions that such a ruling would have sparked.  Campos writes, “It is impossible for a lawyer to read even the first few pages of the dissent without coming away with the impression that this is a majority opinion that at the last moment lost its fifth vote. Its structure and tone are those of a winning coalition, not that of the losing side in the most controversial Supreme Court case in many years.”    This reasoning would also explain the blistering tone of Justice Ginsburg’s dissent in which she eviscerates Roberts’ argument that the individual mandate does not constitute interstate commerce.  Note in particular Ginsburg’s analysis, in her dissent, of the “broccoli horrible” – it could come right from the Jon Steward Daily Show in terms of its biting tone:

“Underlying THE CHIEF JUSTICE’s view that the Commerce Clause must be confined to the regulation of active participants in a commercial market is a fear that the commerce power would otherwise know no limits. As an example of the type of regulation he fears, THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables. One could call this concern “the broccoli horrible.” Congress, THE CHIEF JUSTICE posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others.

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the “hypothetical and unreal possibilit[y]” of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of heroin. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

For the reasons explained above, the minimum coverage provision is valid Commerce Clause legislation.”

What’s worse than a “nanny” state for a conservative?  A “vegetable state”!  Steamed or raw – but not deep fried!  Such a mocking tone, the argument goes, must be driven by Ginsburg’s assumption that she was on the losing side (which, to be sure, she was when it came to the interstate commerce clause.)

A second media meme, however, suggests that Roberts’ is playing a very deep and forward-looking game, and that from this perspective Thursday’s ruling was a victory for conservatives. As Charles Lane wrote in this Washington Post editorial:  “What emerged was less a legal opinion than a plan for national cohesion, on terms remarkably favorable to conservatives.”   How can a decision upholding Obamacare be favorable to conservatives?  First, because by rebranding the penalty as a “tax”, Roberts has provided a rallying point to energize the Tea Party and he has made it more difficult for Obama to run on health care reform as his signature accomplishment.  As Lane puts it, “Conservatives reproach Roberts for activism, saying he “rewrote” Obamacare. He sure did. Formerly, it embodied progressive hopes for a more active federal government and a Democratic political majority. Now, it’s truncated and facing a political battle royale in November with a big “tax” sign around its neck.”

And while much of the analysis has focused on Roberts upholding the individual mandate, the Court also limited the planned expansion of Medicaid under Obamacare.  Remember, 26 states had sued the government, arguing that Obamacare unconstitutionally coerced them to participate in the Medicaid expansion by threatening to remove all Medicaid funding for states that did not participate.  By a 7-2 margin that included liberals Stephen Breyer and Elena Kagan, the Court sides with those states by not striking the provision entirely, but by letting the states opt out without paying a penalty.  Already at least some state governors are hinting that they will do just that. As Lane summarizes, “In short, the liberals saved the plan for the blue states by letting the red ones go.”

Finally, goes this line of reasoning, in the long run, Roberts has carved out ideological maneuvering room and earned political capital which the Court can use to limit the scope of government intervention in policy areas such as Section 5 of the Voting Rights act, or race-based affirmative action.

In short, the argument is that Roberts was quite willing to beat a tactical retreat on this one issue in order to better position the conservative wing of the Court to win the ideological doctrinal battle in the long run.  And that explains the unusually harsh language exhibited by Ginsburg, who understood that Roberts had boxed the liberals in, and was none too happy about it.

I have two reactions to this.  First, to paint Roberts’ ruling as a victory for conservatives is to mistake the forest for the trees.   Let’s not lose sight here of the most important outcome from Thursday’s ruling: the individual mandate, and thus Obamacare, still stands, largely intact with the Medicaid exception.   Had Roberts switched his vote to side with the four other Republican-nominated justices, that would not be the case. While it is true that the liberal justices were none too happy with Roberts’ reasoning, the four other Republican-nominated justices were not exactly pleased either, as Kennedy’s dissent to Roberts’ labeling of the penalty as a tax shows. (I excerpted portions of that dissent in my previous post.)

Second, while it is true that Thursday’s ruling may give Roberts, who is only  57 years old, more room across the next two decades to reshape the direction of the court’s ideological direction, no one can be sure how that will play out.  It seems to me that if ideology alone drove Roberts’ decisions and that he was fixated on leaving the Court’s conservative mark, repealing health care would be a very good place to start.  Obamacare is, after all – as the Vice President infamously described it – a big effing deal.  It’s hard to anticipate any other ruling coming down the road that has the potential to affect so many people as did the Court’s decision regarding health care.   Given the stakes, I persist in thinking that a justice interested only in policy outcomes would have opted for a bird in the hand – repealing Obamacare – rather than playing a long game focusing on the elusive two birds in the bush.

For both these reasons, I stand by my earlier call:  Roberts’ decision is best understood institutionally, in terms of its implications for the Supreme Court’s status and independence, than attitudinally based on Robert’s ideological and policy preferences.  Put another way, if Roberts was not the Chief Justice who bears primary responsibility for protecting the Court’s institutional interests, he would have voted against the mandate.  Or so I believe.

This does not tell us when Roberts arrived at his decision.  It may very well be that it was late in the game, as he weighed the relative consequences of voting ideologically or institutionally.  Only Roberts (and perhaps his law clerks) knows for sure.  Perhaps someday some enterprising political scientist will dig through Roberts’ papers to discover the answer.  By then, of course, we will have more evidence on which to judge whether Roberts, as some are now arguing,  was playing a deep and forward-looking game – and with what degree of success.

Roberts Was Right, Institutionally Speaking

So, what explains the Supreme Court’s decision to uphold the Patient Protection and Affordable Care Act, more popularly known as Obamacare?   As most of you will recall, I thought the justices’ votes would fall largely along ideological lines, as captured by a short-hand measure – whether the justice was nominated by a Republican or Democratic president.  My back-of-the-envelope reasoning was based on more sophisticated models developed by legal scholars regarding how justices make decisions.  Based on my reading of this “attitudinal” model, I anticipated a five-to-four decision rejecting the argument that the mandate fell under the umbrella of the interstate commerce clause.  The government, in fact, cannot make you eat broccoli.  And that is precisely what happened – the Court’s Republican appointees ruled as a bloc against the Democrats to say the mandate was not permissible under the interstate commerce clause.  Here’s the key section, written by Chief Justice John Roberts, from the Supreme Court’s health are ruling:

“The individual mandate, however, does not regulate existing commercial activity. It instead compels individ­uals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Con­gress to regulate individuals precisely because they are doing nothing would open a new and potentially vast do­main to congressional authority. “

This extends a series of Supreme Court rulings dating back to the Rehnquist court in which a majority of the justices have begun to put limits on an expansive reading of the interstate commerce clause.   So far, so good for the attitudinal model.

What I did not anticipate, however, was Roberts’ then joining the four Democratic-nominated justices to uphold the mandate under Congress’ taxing power.  Granted, I’m no legal scholar, and this is a blog about the presidency, but I don’t recall too many legal experts who saw this twist coming either.  Roberts, now aligned with the four Democratic court nominees, writes:

“Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchas­ing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.”

To justify this ruling and mollify conservatives, Roberts’ claims a distinction between Congress’ power to regulate interstate commerce clause and Congress’ taxing power, namely that the power to tax does not give Congress the same degree of control over individuals as does the power to regulate commerce:

“Third, although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Con­gress may regulate a particular decision under the Com­merce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individ­uals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the at­tendant consequences of being branded a criminal: depri­vation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment op­portunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes. By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it.”

I will leave it to legal scholars to parse the relative impact of the power to regulate commerce versus the power to tax.  But the practical implications of Roberts’ ruling are the same: the mandate survives and the health care law is essentially intact.  (To be sure, the Court also struck down, by a 7-2 margin, with justices Elena Kagan and Stephen Breyer joining the Republican voting bloc, the Medicaid extension portion of Obamacare.  The majority ruled that the federal government could not take away all of a state’s Medicaid money if the state does not agree to the Medicaid extensions mandated by Obamacare.   Practically speaking, I’m not sure what effect this will have, since it is hard to believe states will turn down federal monies, but it does strike another blow, legally speaking, for federalism.)

So, the question becomes: what motivated Roberts to side with the four Democratic justices and uphold the mandate?  One answer, of course, is that he buys his own argument that the penalty provision of the mandate is really a tax, and thus perfectly permissible under the Constitution.  Never mind that when enacting the law Congress did not call it a tax and that the Obama administration, for the most part, studiously avoided using that term. Roberts ruled, essentially, that if it walks and quacks like a tax, it is a tax.

The problem I have with this argument is that the other Republican justices did not accept Roberts’ reasoning; they argue, in their dissent, that it is a penalty, not a tax, and that the two are not the same.  Note that the dissenters include Justice Kennedy who, according to the attitudinal model, would typically vote similarly to Roberts.  But not this time. In their dissent, the Republican justices write:

“The Government contends, however, as expressed in the caption to Part II of its brief, that “THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER.” Petitioners’ Minimum Cov­erage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive. Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX.” It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.”

What, then, explains Roberts’ ruling, if not the attitudinal model?  As I tweeted yesterday, I think the answer lies in his position as Chief Justice.  Roberts, in my view, was thinking institutionally when he decided to uphold the mandate.  That is, he was careful in making his ruling to protect the Court’s autonomy and future power prospects.  As Chief Justice he has greater stake than his colleagues in maintaining the Court’s reputation for impartiality. In this sense, Roberts was motivated by the same sentiments that guided John Marshall in the celebrated Marbury v. Madison case: the need to protect the Court’s institutional interests.  Remember, the power of the Court rests on the degree to which other actors, and the public view its decisions as legitimate – that is, not motivated by purely partisan reasoning. By upholding the mandate, and thus leaving Obamacare reasonably intact, Roberts protected the Court’s institutional interests. It is also the case, however, that once we dig beneath the obvious implications of this ruling – that Obamacare survives – there is much in the ruling that conservatives can like, beginning with the limits on the extension of Medicaid.  In terms of legal doctrine, Roberts’ reasoning appears, at least in theory, to reduce the scope of Congress’ use of the interstate commerce clause and spending power as a means of enacting social welfare measures, although the practical implications of this can be debated.  And, of course, by labeling the penalty a “tax”, Roberts has handed the Republicans a political sword which they can use in their effort to repeal the bill, and to attack Obama in the general election campaign.  So this was not an unalloyed victory for the President or his party.   On the whole, however, it certainly was better for them than the alternative: striking the bill down in its entirety.

The broader lesson, and one that I did not fully appreciate in thinking about how the Court would rule, is that justices are free to vote their beliefs as long as they are not subject to conflicting constraints.  In this case, I think Roberts’ role as Chief Justice, and his desire to keep the Court from appear overtly partisan, overruled his ideological preference, which was to strike the mandate down in its entirety.  In so doing, however, he has better positioned the Court’s conservative majority to pursue its ideological preferences in future cases.

3:17 p.m. Charles Krauthammer makes essentially the same argument in this op ed piece. (Thanks to George Altshuler for the link to Krauthammer’s piece.)

 

OK, OK, Enough Already! I’ll Post Something On Health Care

Nothing has happened in the ensuring three months to change my view, expressed in  my original post on the Supreme Court’s health care hearings last March, that that the best predictor of how the Court will rule today is how the lower courts’ have broken down on this case.  That means Republican appointees will vote against the individual mandate, and Democratic ones will support it.  This is not because Supreme Court justices view cases through a purely partisan lens, but because their legal perspective can’t help but be shaped by the same factors that influenced their partisan outlook.  In closely contested legal cases that turn on interpretations of ambiguous words, such as how to define “interstate commerce”, I don’t see a better decision rule.

This is a much guess as anything, of course, but I think it is a reasonable guess given the evidence.   For what it is worth, I think a decision to strike down the mandate, but only the mandate, is consistent with public opinion.  Thus, this recent Pew Research Center poll shows that a plurality of the public disapproves of the health care law in total..

This split has remained relatively consistent since Court’s public hearings on the case last March.  Most notably, the public’s views break down along partisan lines, particularly when it comes to the individual mandate.

This is why I think the electoral implications of today’s decision are likely to be overblown by the media.  Yes, both camps will try to frame the ruling in a way that bolster’s their candidate’s chances heading into November, but as the poll suggests, they will be mostly preaching to their respective choirs.   And while independents are, according to Pew, largely against the mandate, there is some evidence that opinion among this group is more closely divided regarding other components of the law.

Keep in mind as well that surveys consistently show that the economy and jobs are viewed as more pressing concerns by most voters, and that 70% or more of adults surveyed are satisfied with their current health care coverage.  So while I have no doubt that today’s decision is going to generate a torrent of media coverage, we should be careful not to be too swayed by the inevitable partisan spin that will inform much of what is said in the next several days.  Yes, in a close election, one can cite any number of factors as being potentially deciding, but in weighting those factors, health care comes in far below economic concerns.

If the Court renders its ruling on a narrow 5-4 basis, as I’m guessing it will, we will also hear about much damage this will do to the Court’s public standing.   Again, we need to keep this in perspective; public opinion toward the Court, while remaining generally favorable, has nonetheless fluctuated quite a bit in recent years.  I don’t anticipate that a split decision will inflict any lasting damage on the Court any more than its foray in 2000 into election year politics did – and that was viewed as a far more partisan decision.

Finally, the Court ruling today is not the final word on health care reform particularly if it renders a narrow ruling against the mandate, but does not throw out the rest of the law.

So, for now, sit back, grab your morning beverage of choice, and enjoy the fireworks.  Assuming the twitter feed doesn’t collapse, the SCOTUS twitter feed should have the decision almost as soon as it is announced.

10:19  No sooner did I send this than the Court decision came down – but not after CNN misreported the initial results.   In any case, it appears that mandate was upheld under the Congress’ taxing power and not as interstate commerce.  In effect, the Court stepped in and made the argument that the Obama administration should have made.   Interestingly, the Court broke down almost exactly as you might have thought – with the one exception of Roberts, who sided with the majority.   So, the attitudinal model of court decisionmaking gets a pretty big boost here, predicting 8 of the nine justices.  But in the end, it was that 9th that proved decisive.

Now, let the media overreaction begin!

10:29  Ok, I give up.  Again. Now some media outlets are saying that the practical effect of the decision is to undercut the mandate because people who refuse to pay the “tax” will not be penalized by their refusal.  I think I am going to step back and let legal experts actually read the ruling before trying to assess its meaning.

Here’s the actual opinion  by the Supreme Court, fresh from the printing press.

Not surprisingly, there is a LOT of spin going on right now, on both sides – almost all of which is overstating, in my view, the political impact of this decision.  Let’s read the opinion, let the political dust settle, and see where things really stand in 24 hours.  For now, and not surprisingly, everyone on every side sees a silver lining.  Conservatives think the Court just limited Congress’ use of the commerce clause, and strengthened federalism, consistent with recent trends in the Court’s decisions. Liberals are happy the mandate stands, albeit as an illustration of Congress’ taxing power.  Romney is happy to see the ruling take health care off the table, so the election can now be about the economy, where he runs stronger.  Obama is happy the mandate, and thus health care, survived pretty much intact (although the Medicaid restrictions still need to play out).  Roberts is happy because he managed to side with both the conservatives and liberals in one decision.  Even political scientists are happy because the justices ruled pretty much along the lines that their partisan affiliation would have one predict – indeed, on the interstate commerce clause, they ruled exactly as one might predict.

Only CNN is unhappy, because they blew the initial call.

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How Will The Supreme Court Rule Regarding Obamacare?

How should the Supreme Court decide regarding the constitutionality of Obamacare?

I have no idea.  But even if I did, my opinion wouldn’t be worth much. After all, I’m a presidency scholar and this is a blog about presidential power, broadly defined.  But I’m confident that I understand how they will decide the case – and it’s not likely to have much to do with the wording of the Constitution, or related case law for that matter.

For those of you living under a rock, the Supreme Court has just concluded the third and final day of hearings regarding the constitutionality of the Patient Protection and Affordable Care Act – more popularly known as Obamacare – the controversial health care reform legislation passed by a Democratically-controlled Congress and signed into law by Obama in March, 2010. On Monday, the Court’s deliberations centered on whether the suit against Obamacare brought on behalf of attorney-generals and governors from 26 states was justiciable at this time.  (The key issue here is whether the fine for not buying health insurance as mandated under Obamacare is a “tax” or a penalty.  If the former, an argument can be made that the case cannot yet be heard, since no one has actually paid that tax penalty, and won’t until 2014 at the earliest.  However, neither the law’s proponents nor opponents want to delay a Supreme Court decision under this reasoning, and the justices seemed skeptical that the case should not be heard.)  Yesterday the Court heard arguments regarding the constitutionality of the individual mandate – the provision in the law that says everyone must have health insurance, or pay a financial penalty.   Today’s hearing centered on the issue of severability – whether all of Obamacare must fall if the mandate is found unconstitutional, and whether its proposed Medicaid expansion violates the federal-state partnership.

In listening to these hearings,  and reading the abundant commentary, it becomes quite clear that the Constitution or related case law isn’t going to be the determining factors in whether a majority of the Court finds Obamacare constitutional or not.  To be certain, when rendering their verdict, the justices will undoubtedly reference the Constitution as well as previous court cases such as Gonzales v. Raich and Wickard v. Filburn and U.S. v. Comstock. That is, they will ground their opinion explicitly in the meanings they attach to constitutional phrases, such as “necessary and proper” and “interstate commerce.”  And they will buttress their interpretation of these ambiguous phrases by citing these and other court cases.

But if the issues were as clear cut as both opponents and supporters of Obamacare would have us believe, the case probably wouldn’t be before the Supreme Court today.  In truth, as if often the situation with controversial legal cases, there are merits on both sides of the argument.   That’s why the 11th Circuit Court of Appeals (which voted 2-1 to overturn the mandate) and three district federal courts (two of which upheld Obamacare while a third did not) rendered different and not wholly reconcilable legal opinions on the matter. (And I’m sure I’m missing other court opinions on the matter, but you get my point – judges and other legal experts are divided!)

If a reading of the Constitution and legal precedent is not decisive, then how will the nine Supreme Court justices go about deciding the case?  By relying on their own political preferences and attitudes against the backdrop of public opinion.  And, as a political institution, that’s how the Court should arrive at this decision.  Whenever I make this argument, I understand that the legal purists among you recoil in horror, in the belief that politics should play no role in Supreme Court proceedings. Instead, you want the justices to behave like priests in robes, ruling ex cathedra from their legal temple without concern for partisanship or personal preference.

Dream on teen queen!  That view is wholly unrealistic and not even desirable.  For starters, justices are selected through an openly partisan process based in part on their political views; studies show that Democratic presidents overwhelmingly nominate Democratic judges, and Republicans opt for Republican ones.  They do so, presumably, in the belief that judges who share their partisan affiliation will vote in the “correct” way.  (That doesn’t mean they always get it right, of course! See David Souter.) Moreover, because the Court’s power rests primarily on the perceived legitimacy of its rulings, it can’t help but pay attention to public opinion.  This is not to say the Court merely reads the latest polls and rules accordingly.  But it does care about prevailing public sentiments, and most studies suggest that Supreme Court rulings and public opinion are rarely too far out of synch.  This should not surprise us – remember, justices come of age, politically speaking, under the same circumstances that shape the political views of many of their generational cohort. For all these factors, then, we shouldn’t be surprised that when trying to parse the meaning of ambiguous constitutional phrases, such as “necessary and proper”  or “interstate commerce” as applied to complex and novel issues like health care spending and insurance mandates that justices will fall back on their own broad ideological leanings.   How else can they be expected to reach a verdict?

Consider one of the key issues at the heart of this case: whether Obamacare creates a form of commerce and then forces individuals to buy a product, or whether it simply regulates a health care market in which everyone will, sooner or later, participate.  Where one comes down on this, I suspect, turns in large part on one’s broader ideological views regarding the role of government in the economy and in one’s private life.

So, if I am right, what does this suggest regarding how the Court will rule?   I’ll let others peer into the tea leaves of the justices’ questioning, or parse the implications of previous court rulings.   For me, the best evidence is the previous lower court rulings on this case.  If I’m counting correctly, with two exceptions every federal justice appointed by a Republican president has ruled against some aspect of Obamacare, while – with one exception – every justice appointed by a Democratic president has voted in its favor.  This follows on the heels of the congressional vote that saw every Republican vote against the health care bill.  Why should this change in the Supreme Court?  I don’t think it will.  My guess is the four Democratically-nominated justices –  Breyer, Ginsburg, Sotomayor and Kagan – will vote to uphold Obamacare.  The Republican-nominated ones – Scalia, Kennedy, Thomas, Alito and Roberts will vote against the mandate, although I suspect at least some of them will allow the rest of the law to remain in place even without a mandate.  If I am wrong about any of these votes, it is probably Kennedy’s – his questions on Day 2 seemed to suggest he was willing to accept the government’s argument that health care is a distinctly different type of commerce, one in which an individual’s decision not to buy insurance clearly impacts the financial standing of the insurance holders.  I should be clear – I base this prediction not on any deep knowledge of the relevant constitutional law, or after reading the transcripts or listening to the audio of the oral arguments.  So don’t bet the retirement fund on what I write.

What if I am correct and the Court rules against the mandate by a 5-4 vote? Dahlia Lithwick argues at Slate.com that if a closely divided Court does rule in such a blatantly partisan manner, it risks further undermining its legitimacy which was already damaged due to its decisions in Bush v. Gore and more recently with the Citizens United case.  Lithwick notes that “The court likes to pretend it’s completely above public opinion, inured to the momentary zigs and zags of the polls. But most of us know that nothing could be further from the truth.” Citing a Bloomberg News national poll showing that 75 percent of Americans expect the Supreme Court’s decision regarding Obamacare to be influenced by the justices’ personal politics, Lithwick warns that  “To hand down a 5-4, ideologically divided opinion just before the Republican and Democratic Party conventions, would—simply put—prove that 75 percent correct, and erode further the public esteem for the court.”

The problem with Lithwick’s reasoning is that polling consistently shows that a plurality of Americans opposes Obamacare.  To be sure, some of that opposition is rooted in the belief among liberals that the legislation doesn’t go far enough, and the degree of opposition depends in part on survey question wording.  But it is safe to say that at no point since the legislation passed Congress has it received majority support. Much of that animosity  centers on the individual mandate whose coercive nature – while perhaps economically necessary to make Obamacare feasible – cuts against the grain of many Americans’ deep-seated cultural aversion to what they perceive as government infringement on individual freedom.  So it’s not clear to me that a closely-divided 5-4 decision against Obamacare will do much to impact public opinion toward the Court.

Keep in mind that public approval of the Court has declined a bit recently, but that decline is due to increasing dissatisfaction – but for different reasons – from liberals and conservatives.

About a third of Democrats generally feel the court is too conservative, while half of Republicans hold the opposite view. Independents come down in between although a slight plurality think the court is too liberal as opposed to too conservative.  Most independents, however, think the Court’s ideology is about right.

Given this preexisting partisan divide, it seems that barring a unanimous decision, how the Court rules regarding Obamacare is likely to be viewed by members of one party as primarily a partisan-driven decision.  Those in the other party will view it as correctly decided.  However, it is certainly plausible that many independents who are not sure where to come down on the issue will back the court, no matter what it decides. Put another way, when it comes to Obamacare, at least some of the public may be closely divided, but not necessarily deeply divided.

Looking ahead, the Court is likely to render its decision sometime this summer, near the end of its current session.  That will be just as the nominating process is winding down (I think!) but before the general election heats up.  No matter how the Court rules, Obamacare is likely to be an important issue in the presidential election, just as it was in the 2010 midterms.  But it’s hard to see how the Court’s verdict can make an already divisive issue even more polarizing.