I want to recommend Will Wilkinson’s post at Democracy in America about Supreme Court Kremlinology and the health care mandate. I think that in this case, given the prominence of the law in question for their party, it would be very peculiar indeed for either Kagan or Sotomayor to defect and strike down the law. The only political reason to do so would be to “save” the party from the consequences of the law, and that political reason makes little sense given that the party is in a stronger negotiating position for amending the law if the law is on the books than if it is struck down, and given that the political consequences of having your opponent’s most strident claims about your primary political objective – it shreds the Constitution – endorsed by the Supreme Court are, let’s face it, pretty dire. So their defection would have to be a matter of principle rather than of politics. And even if they held to such a principle, given how huge a precedent would probably be set by striking down the law, and how easy it would be not to set such a precedent, it’s hard for me to see how they would be moved to stand on principle in this case.
The best argument for defection from the left would relate to the internal politics of the court itself. Let’s say we knew there were five votes to strike down the law: Thomas, Scalia, Roberts, Alito and Kennedy. That’s a narrow majority that could write a very sweeping opinion if it chose. But some of the conservatives – Roberts and Alito, most likely – might be concerned about the political impact of too-sweeping an opinion. There might be negotiating space for a Kagan or a Sotomayor to agree to join a majority opinion striking down the law on much narrower grounds than a purely “partisan” decision would yield. A narrowly-based 6-3 or 7-2 decision written by Alito with, say, Thomas and Scalia writing a sweeping concurrence would carry more weight than a 5-4 decision written by Thomas with no liberals on board, which would make it more of a win for the political right, but would also have less of an impact on the state of the law generally, which would be a mitigating victory for the political left, and the rationale for joining the decision.
Point being: even if one is enough of a legal realist to question whether Justices really follow “judicial philosophies” to their logical conclusions, that doesn’t mean that the norms and structures of the law have no bearing on their decisions. The legitimacy of the legal system depends on the perception that there is a coherence to the law, that it isn’t just whim, ungrounded opinion. I’ve always liked Ronald Dworkin’s analogy to a “chain novel,” each decision comparable to a new chapter, where judges attempt to add their own ideas and thoughts but to do so in such a way as to harmonize them, as best they can, with what has come before. Precedent has “force” inasmuch as simply ignoring it, and saying what one likes, undermines public respect for the law, and therefore respect for precedent does materially constrain judges and Justices from simply deciding cases on the basis of their personal preferences and nothing else.
That’s why I still find it hard to conclude that the Supreme Court will strike down the health care mandate. The health care mandate is functionally identical to a provision that taxes everyone and then provides everyone with either a voucher to purchase health insurance of specific types from approved providers, or an offsetting tax credit if one is insured through one’s employment. And such a provision is clearly constitutional – the Congress has the power to tax to promote the general welfare, and Congress has the power to spend that money pretty much however it likes. So if the mandate is unconstitutional, this is a purely formal matter – Congress can command you to give your money to them, and then give you a voucher good for purchasing a service only from a designated set of private companies, but cannot cut out the middleman and simply command you to give your money to one of a designated set of private companies in exchange for said service.
So I could see (barely) how you could construct a Supreme Court majority that would strike down the law on this narrow form-over-substance basis. But it would be easy (in theory – not with a GOP majority in the House, obviously) to re-write the law to get around this problem. Meanwhile, the precedent would potentially screw up a whole host of other Federal regulations, all of which would need to be combed through to make sure they were not penalizing individuals (or corporations – they are legal individuals, remember) for “inactivity.” It would not stop a future Congress from enacting a sweeping reform of health care. But it would open huge swathes of Federal regulation to question, massively increasing legal uncertainty in economic matters. Is that really what conservatives on the Court are aiming for?
The Court has generally been very reluctant to throw whole areas of the law into confusion. When it has nibbled at the edges of Commerce Clause precedent in the past (in U.S. v. Lopez and U.S. v. Morrison), it has done so when Congress has endeavored to regulate matters absurdly unconnected with interstate commerce – and even these decisions caused considerable consternation because it was not clear where the new lines were being drawn, and therefore what the law might be. Nobody would argue that the health insurance market is not part of interstate commerce, or that (given the ethical and legal mandates to provide treatment for anyone in an emergency regardless of their insurance status) an individual’s decision not to participate in that market has no material consequences for that market. The consequences of striking down the health care mandate would therefore be much more far-reaching and unpredictable that the decisions in Lopez or Morrison. Regardless of the personal preferences of the Justices with regard to the law, then, I just have a hard time seeing them taking the plunge.
Rather than negotiating with Roberts to narrow the scope of a ruling to strike down the law, I would expect Kagan/Sotomayor and Roberts to be negotiating to narrow the scope of a ruling upholding the law. Kennedy’s always a wild card, so maybe the resulting decision is 6-3 rather than 7-2. But Scalia has been known to take very principled stands, and particularly to dislike line-drawing that he feels gives too much discretion to judges (take a look at his reasoning in Employment Division v. Smith), so I wouldn’t be entirely shocked to see him join an 8-1 majority to uphold.