So, what does it all mean?
First, set your alarm clocks for late June. The Court never lets its decisions be known before the official release of the opinions, but it always tries very hard to release opinions during the term they are argued; otherwise it re-argues them (not something it will want to do with this case!). The opinions can be released as soon as they are ready, but the more complex the case and the greater the number of separate opinions (dissents and concurrences), the longer the process takes. It would have hard to get a more complex case than this one and I suspect a lot of Justices will want to put in their own two cents.
There are now 93 days until June 30, which is a Saturday – so 92 days until the last business day in June. That’s not a lot of time for this complicated a case. My best guess is that the opinion comes out on June 29. Second best guess is Monday, July 2. (Sometimes they slip.) And third best is Thursday, June 28. Anytime before the last week of June seems like a real long shot.
Second, now that the public oral arguments are over, the really important arguments in the case start: the arguments among and between Justices. Soon the nine Justices will meet in their conference room, attended by no one else. The most junior Justice, currently Justice Kagan, takes notes and answers the door. They will discuss the case and take a preliminary vote. The senior justice in the majority (the Chief Justice if he is in the majority, I suspect Justice Kennedy if Chief Justice Roberts is not in the majority) then assigns a Justice to try to write a majority opinion. The senior dissenting Justice (probably in this case Roberts, Scalia, or Ginsburg) next assigns a Justice to write a dissent.
You never really know whether an argument works – in a court case, in a law review article, in a blog post – until you try to write it up.
Then the hard part starts. You never really know whether an argument works – in a court case, in a law review article, in a blog post – until you try to write it up. At the Court, this writing does not go on in a vacuum. Justices talk to each other, lobbying for the result or for a theory of the case or for a little bit of language to define the holding better. Their clerks talk to each other, seeking information about the other Justice’s views and trying to influence the views held in the other Justice’s chambers. (Clerks, in my experience, aren’t as important as they sometimes like to believe, but they can be important for conveying information and arguments between Justices.)
At some point, probably not for several weeks, draft opinions begin to circulate. In a case like this, every Justice and probably every single clerk (nearly 40 of them) will be paying close attention. Arguments will be dissected, sentences will be diagrammed, verbs will be fought over, and deals will be made. “I’ll join your opinion if you’ll emphasize this argument and tone down that attack.” “Ok, is this language sufficient for you?”
It’s an old but true line that the most important number at the Court is five. A Justice normally needs five votes to have his or her opinion become “the law.” Getting to five is an all-consuming drive and sometimes the path is surprising. There are cases where a Justice “loses his Court” at the last minute. Sometimes one sees very long and elaborate four Justice dissenting opinions, opinions that look very much like majority opinions (except for their bottom lines) because, until a day or two before the end of the term, they were majority opinions.
The public show is now over and, with it, the last weak glimpse into the Court’s mind before the opinions are released. Now the real work starts.
So what will happen?
Anything could happen. Don’t believe anyone who is highly confident of the overall outcome of this case. (Jeffrey Toobin of CNN has written so strongly of the death of health reform that he has convinced me not to pay attention to him in the future.) This case is important, it’s unprecedented (in a technical sense – there is no clear ruling precedent), and the one thing that does seem clear from the oral argument is that it should be close. But here are my guesses, on each of the four questions the Court asked the parties to address.
I feel highly confident that the Court is not going to use the Anti-Injunction Act to avoid hearing this case. It could still happen, but only if there is no clear majority on the merits. And I saw no signs of a splintered Court here. I think there will be one main opinion, with a majority, though probably with several concurring opinions, and one main dissent, though probably with several smaller dissents. (It is conceivable that the Court could end up four to one to four on the mandate, either upholding it or striking it down with four Justices taking one theory and one Justice, probably Justice Kennedy agreeing for different reasons – but I saw no sign of a divergent theory that could lead to that result.)
On the main event, my best guess is that the individual mandate will be upheld, five to four or six to three. It is not a confident guess. My second best guess is that it will be struck down, five to four and I’d put the chances between those two at about 60/40.
On the main event, my best guess is that the individual mandate will be upheld, five to four or six to three. It is not a confident guess. My second best guess is that it will be struck down, five to four and I’d put the chances between those two at about 60/40. But I do suspect, ultimately, Justice Kennedy is slightly more likely than not to side with the statute – and Justices Ginsburg, Breyer, Sotomayor, and Kagan. I see three reasons for that.
First, the main fight over the mandate was the search for a limiting principle to Congressional power under the Commerce Clause. “If the Congress can do this, the Congress can therefore force us to do [insert your favorite ridiculous example].” That’s not an unfair argument and I, for one, would not welcome the dreaded broccoli mandate. But it’s not a clear winner of an argument. There are many cases where similar concerns come up, where one would like to draw a line but hard and fast lines are hard to find. Justice Kennedy said something near the end of the second day that seemed to be very relevant. In response to an answer from Mr. Carvin about how the “real” problem, which Congress hadn’t addressed, was young free-riders, Justice Kennedy said:
And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.
That’s my concern in the case.
Two things about comment jump out at me: Justice Kennedy recognizes that the issue is one of degree – bright lines are not going to be found. Then, he sees a possible way to say this case really is special, compared to broccoli, cell phones, and all other examples – the special role of uninsured young people.
Second, the mandate’s opponents quickly conceded that Congress could have forced everyone buying health care to do so through purchasing insurance. You show up, bleeding from a serious car accident, at the ER and the government could constitutionally say “no services for you unless you now purchase insurance.” If Congress can do that constitutionally, it seems a bit silly to say that it can’t force people to buy insurance in advance, when it is much more practical – arguably even “necessary and proper.”
My final point is much more speculative. I don’t know Justice Kennedy. I think I’ve shaken hands with him once and I distrust my ability, or anyone else’s ability, to read someone’s motivations. And yet. It seems to me that Justice Kennedy, in particular, will not want his legacy to be that he struck down health reform. He seems to me to be a Justice concerned about his legacy, about history, and about not being on the wrong side of history. Vainly trying to hold back an inevitable tide, I suspect, does not appeal to him as a heroic stance. To me, that is at least a partial explanation for his general stance on gay and lesbian issues. He sees how history is moving and does not want to be on the wrong side.
If the system inevitably is going to undergo massive change, why strike down a reform that gives individuals choices from among private insurers, some of them for profit, when the likely result is to make more likely a government-run single payer system – which clearly would be constitutional, at least as long as Social Security and Medicare are constitutional?
The one thing everyone knows about our health care financing system – with the possible exception, based on the oral argument, of Justice Scalia – is that it will not – it cannot – stay the same. Unsustainable trends ultimately will not be sustained. The issues of cost, quality, and access in our health care system are headed for a massively intertwined train wreck. If the system inevitably is going to undergo massive change, why strike down a reform that gives individuals choices from among private insurers, some of them for profit, when the likely result is to make more likely a government-run single payer system – which clearly would be constitutional, at least as long as Social Security and Medicare are constitutional? I don’t think that is a legacy Justice Kennedy will want to leave. But this speculation cubed – don’t put much weight on it.
If the mandate is upheld, severability isn’t an issue (except perhaps for Medicaid). If, in spite of my best guess, the vote goes five to four against the mandate, then I think the Court will say that the parts of the Act Congress has pointed to as being especially closely connected to the mandate – guaranteed issue and community rating – will fall. The ornaments on this Christmas tree of a bill – the Black Lung benefits, the Biosimilars legislation, and so on – will not fall. Where the line gets drawn exactly – employer mandate, health exchanges, Medicaid expansion, etc. – is hard to tell.
Finally, I think the Court will uphold the Medicaid expansion, perhaps by a seven to two vote. It need not, but going the other way puts into question scores of federal/state programs, including, most notably, the existing Medicaid program. Chief Justice Roberts seemed to signal as much in saying that the states had lost their full independence years ago. Again, the underlying issue is the search for a limiting principle, for something that says the federal can’t bribe states into doing absolutely anything it wants, but this just isn’t that extreme. I could see, though, the Court giving a partial victory on this issue to the states. It could say, for example, that the expansion isn’t unconstitutional “on its face” (in the abstract), but that states could come back later, after it is implemented, and make a case that it was unconstitutional as applied. Or they could adopt Justice Breyer’s idea and point to serious Administrative Procedures Act limitations on the discretion of the Secretary of HHS. That would provide some kind of partial limiting factor, if not principle, as well as providing a bit of political balance. (And similar political calculus makes me think that if they strike the mandate, they will uphold the Medicaid expansion.)
Justices Ginsburg, Breyer, Sotomayor, and Kagan seem clearly to be votes for the Act. Justice Scalia seems to be an attack dog against every little bit of the Act. And so will be, I would guess, based on his general approach, his silent colleague, Justice Thomas. (By the way, I did think Justice Scalia went too far in injecting his personal political views when he said Wednesday afternoon, in response to a comment on political constraints that might limit the federal government’s ability to coerce states, “I would have thought there was a serious political strain – constraint on the individual mandate, too, but that didn’t work.”) Justice Alito also seemed surprisingly (to me) fixed against the mandate, though, of course, one can’t be sure.
That leaves Justice Kennedy and Chief Justice Roberts. I’ve discussed my guesses about Justice Kennedy. Chief Justice Roberts asked hard questions on both sides, though it isn’t clear whether that was out of conviction or out of a sense that one his roles as Chief Justice is to seem even-handed. If Justice Kennedy votes to uphold the mandate, I could see the Chief Justice also voting to uphold it, for several reasons. First, of course, is that I think that’s the legally correct decision. Second, by joining the majority, he gets to decide who writes the majority opinion – and he could assign it to himself. Even if he assigns it to someone else, being part of the majority usually will give a Justice a little more bargaining power over the details of that opinion. Finally, a six to three decision upholding the Act, with the Chief Justice in the majority, will look less partisan than a five to four decision with Justice Kennedy, notorious as the “swing Justice,” making the difference. And that, he might reasonably feel, would be good for the Court.
It has been fascinating to read these transcripts closely and to engage with these issues. I hope you have found these posts useful and interesting. Whatever the Court does, the enormous problem of our health care financing system is not going away. “Obamacare” is far from perfect and would only be a starting point, not an end point. If the Act is struck down, we wouldn’t even be at a starting point. Please get, or stay, engaged in trying to help us move to a more sustainable, higher quality, and more humane way of providing health care. Our country – and so our children and grandchildren – face no more important domestic policy issue.
Hank Greely, JD, is a Stanford law professor and an expert on the legal, ethical, and social issues surrounding health law and the biosciences. He is director of the Center for Law and the Biosciences, and he chairs the steering committee of the Stanford Center for Biomedical Ethics.