Opinion: Legal experts predict a Supreme Court win for ‘Obamacare’


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Betting on whether the Supreme Court will declare ‘Obamacare’ unconstitutional this year? At least some of the smart money is on ‘no.’

The American Bar Assn. devoted all 40 pages of the latest Preview of United States Supreme Court Cases magazine to the high court’s review of Obamacare, formally known as the Patient Protection and Affordable Care Act. (The court is scheduled to hear arguments about the law’s constitutionality this month.) For this special issue, the editors of Preview polled ‘a select group of academics, journalists and lawyers who regularly follow and/or comment on the Supreme Court’ to get their predictions on how the court would rule.


The result: 85% said the act would be upheld, mainly because they believed the court would find the requirement that all adult Americans obtain insurance coverage to be constitutional. A small faction -- 9% -- believed the court would hold that the challenge to the law was premature because the provisions being challenged won’t go into effect until 2014. Most of those polled also said that if the court struck down the individual mandate, it would leave the rest of the act intact.

Granted, these are just educated guesses. The ABA didn’t identify any of the experts it polled, so it’s hard to know how much their own views of the healthcare law or the Constitution’s commerce clause influenced their prognostications. We probably won’t know the actual disposition of the appeal until the very end of the current Supreme Court term in late June or early July.

In the meantime, you can look at Preview -- the healthcare issue is free online -- and second-guess the unnamed court-watchers. The editors asked the experts to predict how each justice would vote on each of the four issues before the court. Here’s how their answers broke down:

Most members of the group predicted a unanimous ruling that the challenge to the law was not premature, although 44% felt that Justice Sonia Sotomayor would dissent.

The group predicted a 6-3 decision to uphold the individual mandate, with Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy joining the court’s liberal wing in support, and Justices Clarence Thomas, Antonin Scalia and Samuel A. Alito Jr. dissenting. Kennedy was seen as the most likely to go the other way, with 47% predicting he would vote to hold the mandate unconstitutional.

(I’m no expert, but I suggested two years ago that Scalia would be sympathetic to the mandate, based on the concurring opinion he wrote in the case of Gonzalez vs. Raich.)


Asked whether the court would throw out the entire law if it ruled against the individual mandate, those polled predicted an 8-1 ruling in favor of letting the rest of the law remain in effect. Similarly, they expected an 8-1 split in favor of the law’s expansion of Medicaid, which two dozen states have challenged as unconstitutional. The sole dissenter on both issues, the group projected, will be Thomas.


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