The Supreme Court this morning will kick off the first of three days of hearings on the constitutionality of the Affordable Care Act, and interest in the case is as strong as anything we've seen in many years. For those who watch the high court closely, however, there's a striking lack of intrigue about the outcome.
National Journal surveyed former Supreme Court clerks and lawyers who have argued cases before the high court about the health care law, and the consensus was that the Affordable Care is likely to prevail. One respondent said, "I don't think this case will be nearly as close a case as conventional wisdom now has it. I think the Court will uphold the statute by a lopsided majority."
That's not at all an unusual predication. On the contrary, despite the polls and ongoing political fights surrounding "Obamacare," most legal insiders, even on the right, find it unlikely the Supreme Court will ignore precedent and strike down the law.
But the justices have proven to be unpredictable at times. Jon Chait had a good item the other day on setting expectations.
The legal case against the Affordable Care Act is completely absurd. You can make the argument sound kind of plausible, but if you’re a law-talking guy, you can selectively cull through precedents and pile assumptions onto each other just so in order to reach pretty much any conclusion you want. That’s pretty much what the legal challenge to the Affordable Care Act would do. As a straightforward interpretation of constitutional precedent, it’s just silly.Legal analysts are not dismissing the case completely, but that's only because they don’t dismiss the possibility that five Republican-appointed justices will leap at a chance to advance the partisan agenda of their choosing. Jack Balkin, in an article suggesting it’s highly unlikely the law will be found unconstitutional, searches through history and can only find one example of the Court making a ruling so radical and lacking in constitutional basis.
The example was an 1895 case in which the court struck down the federal income tax, with overzealous conservative justices responding to a far-right panic about an imaginary "socialist" threat.
In other words, the Obama administration, congressional Democrats, health care advocates, working families, the uninsured, and Americans who occasionally rely on the American health care system have nothing to worry about, just so long as five conservative justices resist the urge to get caught up in a larger ideological crusade.
Common sense suggests the outcome at the Supreme Court is a no-brainer -- of course the court majority will rule in favor of the law. If the justices stick to precedent, it won't even be close -- they'd have to take a truly radical approach to the law to conclude otherwise. But since the Roberts Court is quite capable of radicalism, predictions should probably be taken with a grain of salt.