Obamacare: Reading the SCOTUS Tea Leaves

The "convention wisdom" now apparently has it that the individual mandate, at the bare minimum, will be invalidated by the Supreme Court. Indeed, in a thinly sourced dispatch yesterday in Forbes, Obamacare opponent Akiv Roy reports that Justice Kennedy has already sided with the "conservatives" on this point, but that the justices are still (still!!) undecided on the issue of severability. (Jonathan Cohn has a nice overview of what the potential outcomes are here.)

I write merely to be on the record in predicting that the Affordable Care Act will effectively be upheld in its entirely, even if the Court to some extent buys into the activity/inactivity distinction of the challengers. (This could potentially lead, as Cohn notes, to a somewhat Pyrrhic victor for the challengers, one in which the mandate is invalidated but the penalty remains on the books.)

Why? Because Kevin Drum is entirely correct when he writes the following:

If the court does overturn the mandate, it's going to be hard to know how to react. It's been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can't think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock — but it was also a unanimous decision and, despite FDR's pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don't like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that's pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.

The less ideological conservatives on the Supreme Court surely realize this, and I simply can not fathom that they are willing to jettison the Court's institutional legitimacy in order to score a short-term political goal for the Republican Party, on an issue far removed from the core concerns of movement conservatism. 

Perhaps this is naive. But judicial actors, although indisputably political actors, are not partisans in the same sense as legislators, and face far different institutional pressures and constraints. The Court is surely aware that its public approval ratings are at near-historic lows, and the Court is surely aware of what the elite (legal) consensus will be if the ACA is overturned, even in part. (See, e.g., Charles Fried's congressional testimony on the constitutionality of the ACA here, or his reaction to the oral argument here and here.) 

As a result, I continue to believe, contra the conventional wisdom, that the ACA will be upheld either 6-3 or 7-2. I desperately hope I am correct: beyond my concern as a lawyer-citizen, the human cost of a contrary result will be significant (e.g., here), something that is all too often overlooked in discussions of the case.

UPDATE: In discussing this blog post on Facebook, I was reminded of a Dahlia Lithwick dispatch, written prior to oral argument on Florida v. HHS, that echoes and expands upon the point I am trying to make here:

If I am right [that the Justices are concerned about legitimacy], some justices may believe that this isn’t a fight worth having. Not now and not over this issue. ... Given th[e] line up of future cases [concerning congressional redistricting, enforcement of immigration laws, affirmative action, the VRA, gay marriage, and abortion], the five conservatives may want to keep their powder dry for now. I think they will. ... [F]or the court to strike [the ACA] down, the justices would have to pick a fight that wasn’t theirs in the first place [but was rather the Republican "Tea Party" base's fight]. ... The conservative legal elites don’t believe in the merits of this challenge, even if the public does. ... That brings me full circle to the court’s five conservatives. Is it possible that they are sufficiently ideological and political that the grim joy of sticking it to the president and the Congress will lead them to strike down the law? Of course. But .... [t]hey were raised on Reagan-era opposition to abortion and affirmative action, to the perceived indignities of the Voting Rights Act, and objections to the wall erected between church and state. ... They didn’t join the Reagan Administration to return to the glory days before the court expanded the reach of the Commerce Clause ....

That’s why the current fuss being made over the health care cases has offered the court a perfect cover story. They will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And the justices will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market. then ... And then—having been hailed as the John Marshall of the 21st century—he will proceed to oversee two years during which the remainder of the Warren Court revolution will be sent through the wood chipper.

Although I take it from Dahlia's subsequent dispatches (following oral argument) that she has changed her view on the likely outcome of the ACA litigation, I think her ex ante analysis was prescient and will likely prove correct.