Free Markets, Free People

Ruth Bader Ginsburg

Hints about how the Supreme Court will rule on ObamaCare?

File this under speculation, because that’s essentially what it is (but you have to do a little of it every now and then, and besides, it’s a sport when talking about pending SCOTUS decisions), but still speculation with some possibility of being accurate.

It seems, according to  Avik Roy, that June 25th is most likely the day we will learn the fate of ObamaCare from the Supreme Court.

“Setting aside the ACA cases,” he notes, “the Court essentially has twelve other decisions to hand down.” In addition, “in recent Terms, the Court has handed down opinions on Wednesdays or Thursdays of both of the last two weeks of the Term, in addition to the regularly scheduled Mondays. And the Court has already announced that it will issue one or more opinions next Thursday, June 21.” Worth also noting, he writes, “the Court almost never issues more than four or five opinions on the same day.”

Hence, if the court issues four or five opinions each on Monday, June 18 and Thursday, June 21, that would leave between two and four opinions for the last scheduled day for reading opinions: Monday, June 25.

And how will the ruling go?  Well, Ruth Bader Ginsberg has said previously that there are some “sharp divides” among the justices.

But, again according too Roy, Ginsberg may have also hinted she’s on the “dissenting” side, meaning that she’s on the minority side of the decision.  The basis for that claim?

In her ACS remarks, Ginsburg suggested that she might be on the dissenting side of the case. “I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change,” said Ginsburg, in the context of a 2007 pay discrimination case.

Or that may signal nothing at all (she may simply have been speaking academically about “dissenting opinions”).  The key, if we accept the premise that she’s on the dissenting side of this particular ruling is what that means.

Roy mentions that the divide may not be associated with killing the mandate – there may be more than 5-4 agreement on that subject (he suggests it is almost a given that Kennedy will join the conservatives on the court to kill the mandate).   The divide may be with what to do with the law if the mandate is killed:

The key question is: how much of the rest of the law should be struck down along with it?

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

As far as I’m concerned, I’d like to see the entire law struck down.  However, I’m now wondering whether or not that will play out. 

Roy also mentions Antonin Scalia’s recent book and asserts that it hints that Scalia is on the side of dumping the mandate and the law in its entirety.  He wonders if Scalia, given his writing about the scale of the Commerce Clauses expansion and Scalia’s unhappiness with that, has chosen ObamaCare as the case he’s chosen for judicial pushback. 

So, again, based on this speculation, one might surmise that the court has found the individual mandate to be unconstitutional, but is struggling with how much or how little of the law to strike down.

Of course, the individual mandate is the heart and soul of the bill.   It is the payment mechanism that undergirds the entire ponzi scheme program.   No mandate, no money, no expanded risk pool, not much of anything if it goes.

So perhaps even if the court leaves much of ObamaCare standing, it will end up being a Pyrrhic victory for its supporters as the law will then be unsustainable as it exists (minus the mandate).

I guess we’ll see on or around the 25th.

~McQ

Twitter: @McQandO

David Souter Will Retire From SCOTUS (updated)

Let the real scary part of the “all Democrats all the time” begin:

Factors in his decision no doubt include the election of President Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court’s more liberal bloc over the past two decades.

The problem, of course, is that Souter could be one of three appointments Obama might have the opportunity to make within his 4 years in the White House. Apparently neither Stevens or Ginsburg plan on retiring after this term, but Stevens is 89 for heaven sake and Ginsburg just got over a bout with cancer.

Rumor has it that Obama wants to appoint a woman (I guess “best qualified for the job” is just too much to ask):

Possible nominees who have been mentioned as being on a theoretical short list include Elena Kagan, the current solicitor general who represents the government before the Supreme Court; Sonia Sotomayor, a Hispanic judge on the U.S. Court of Appeals for the Second Circuit; and Diane Wood, a federal judge in Chicago who taught at the University of Chicago at the same time future President Barack Obama was teaching constitutional law there.

Just looking at the list, Sotomayor would be the diversity daily double winner and don’t anyone think that won’t enter into the conversation when nominees are being discussed.

UPDATE: George Stephanopoulos thinks Sotomayor is a ‘heavy favorite’.

UPDATE II: MichaelW hopes if he chooses from that list that his choice is Kagan.  Here’s why.

~McQ