June 25, 2012

So, we must wait until Thursday for the Obamacare decision.

According to SCOTUSblog's expert opinion, based on who's written the decisions already announced, "health care is almost certainly being written by CJ Roberts, perhaps in part with Justice Kennedy."

31 comments:

Scott M said...

"health care is almost certainly being written by CJ Roberts, perhaps in part with Justice Kennedy."

But what does that mean? I haven't had time to digest everything that came out this morning, but didn't Roberts side with the majority in the AZ case?

I think it unlikely that Roberts and Kennedy, given the oral arguments, will go with the administration on Obamacare, but stranger things have happened.

Popcorn, anyone?

deborah said...

Tom:

From the opinion authorship, health care is almost certainly being written by CJ Roberts, perhaps in part with Justice Kennedy.


I'm with Scott. How is this conclusion reached?

Lem said...

If Roberts is writing, that means its doomed.

I just cant see.. the home plate umpire reversing himself.. I mean.. he didn't make the call yet.. but he sure look like he was leaning to calling it foul.

Matthew Sablan said...

I'm seeing it the other way. Roberts is writing it to keep the partisanship lookingness down and they are going to split the baby somehow. Maybe kill the mandate, leave the rest? Who knows! Thursday knows.

Ann Althouse said...

"I haven't had time to digest everything that came out this morning, but didn't Roberts side with the majority in the AZ case?"

But he didn't write the opinion. The SCOTUSblog people make predictions of who's writing the opinion based on who is already known to have written an opinion from a particular "sitting" -- when the Court heard oral arguments and the opinion-writing was assigned. So, from the relevant sitting, we have not yet heard from Roberts, which raised the inference that he's got that opinion.

Also, if he's in the majority, the Chief Justice assigns the opinion. It's predictable that the CJ would assign the very momentous opinion to himself.

Ann Althouse said...

I could conceive of Roberts writing to uphold Obamacare.

Lem said...

How is this conclusion reached?

Process of elimination.. what they put out so far was not written by any of the big two.

It makes sense that a ruling of this import Roberts would write it.. but wait a minute.. that could also mean its not a foul ball, that the vote went in favor and Roberts is writing a narrow ruling?

Oh shit.. Kennedy went with the Liberals.

Mr. D said...

I could conceive of Roberts writing to uphold Obamacare.

I could, too.

SteveR said...

Is upholding the mandate the same as upholding Obamacare?

Scott M said...

I could conceive of Roberts writing to uphold Obamacare.

That was my point. Just because Roberts is writing it and is joined by Kennedy doesn't mean the conclusion is forgone at all.

Justin said...

I could conceive of Roberts writing to uphold Obamacare.

I think his joining the immigration decision today shows that his views about federal authority may be very different from Scalia, Thomas and Alito. He could write a decision updholing Obamacare on narrow grounds. I think it's very conceivable.

Ned said...

I could conceive of Roberts writing to uphold Obamacare

I could conceive of a country where the constitution means squat...laws equally as frivolous...ain't that grand...te he!!!

Pastafarian said...

If only the mandate is removed, then the left will win what they wanted all along: Single-payer.

Premiums will skyrocket even faster than they already are, and by 2014 the only companies that will be able to afford health insurance for their employees are government-funded companies like GM and GE.

Most of the workforce will have to purchase their own insurance, from the government or from murkily government-funded insurance companies, and these workers will have their premiums subsidized by the government, which will base the size of the subsidy on their income, or on party affiliation, or both.

We'll have de facto single payer.

The left doesn't care if we're all paid in turnips and potatoes; as long as they get first pick from the cart.

edutcher said...

If it's upheld, the Romster will be able to run on repealing the monster.

Bender said...

perhaps in part with Justice Kennedy

Well, it is undeniably clear by now that Kennedy has seized the power to extort the privilege to write a majority opinion in any and every major case whenever he wants to.

SteveR said...

If only the mandate is removed, then the left will win what they wanted all along: Single-payer

Bingo!! It was never supposed to work

Baronger said...

Right now I think the most important question is the one that is not being said.

Why is the Court such a tease on this?

Just tell us already.

(Also is it just me or is the new recaptcha biased against the color blind?)

mccullough said...

Since Roberts is the smartest member of the Court, it's good if he writes the opinion. If the mandate is upheld, better on narrow grounds that stop Congress from having the power to compel most purchases.

Bender said...

Since Roberts is the smartest member of the Court, it's good if he writes the opinion. If the mandate is upheld, better on narrow grounds that stop Congress from having the power to compel most purchases

Merely being assigned (or assigning to oneself) the writing of an opinion does not guarantee that it will, in fact, be the judgment of the Court. Whoever is assigned to write a "majority opinion" still needs to get four others to sign onto the opinion. If the four libs plus Kennedy do not like what Roberts would write (under the scenario that he votes to uphold), if he writes too narrowly for their tastes, then they are free to sign onto what would have been a concurring opinion instead, and it is that opinion that becomes the majority opinion and the opinion of the Court. So, any one of Breyer, et al. could still end up the majority opinion if that is what four others agree to.

Bender said...

Of course, it could be that no opinion gets a majority vote, as was the case with Casey v. Planned Parenthood (1992), in which case there is no opinion of the Court, only the judgment of the Court to affirm or reverse (or both in part) and then, generally, the plurality opinion, the one with the most joining it, is usually later cited as having the greatest precedential weight.

Jeff in Oklahoma said...

I don't claim to be clairvoyant, but given Kennedy's stance at oral argument. I'd wager that the mandate is going to be overturned.

Roberts concurred with Kennedy's opinion in US v. AZ.

Like I said in another thread, it was Robert's quid pro quo.

Thorley Winston said...

I could conceive of Roberts writing to uphold Obamacare.

Me too, for a couple of reasons:
1) He might want to strike down the law but doesn’t have the vote (e.g. Kennedy votes to uphold) so he switches in order to write an opinion as narrowly tailored as possible. The only way he can do that is if he’s in the majority.

2) I don’t share the expectation that a lot of conservatives/libertarians seem to have that Roberts believes that Enumerated Powers limits Congress as much they would like. Roberts seems to lean towards deferring to the political branches particularly at the federal level and this may be consistent with his general tendencies towards judicial restraint.
I hope I’m wrong and it’s struck down in its entirety but I’m preparing myself for the worst outcome – strike down the individual mandate but find it severable from the rest and Republicans cave on their pledge to repeal the entire thing and instead just go after the unpopular bits and pieces while leaving the more popular (and probably more awful) aspects in place.

Thorley Winston said...

Is upholding the mandate the same as upholding Obamacare?
It depends. The challenge to Obamacare is two-fold (1) that the individual mandate is unconstitutional and (2) it is not severable from the rest of the law so if the mandate goes, the rest of it should go as well (I’m ignoring the challenge to the Medicaid expansion which I think will likely get upheld just like all of the rest). The court could strike the down the individual mandate but decide that it’s severable from the rest of the law in which case they will strike down only one part of Obamacare. Or they could vote to strike down the individual mandate and decide it’s not severable and strike down the entire law. Or they could decide to strike down the individual mandate and decide that it’s not severable from all of the law but some parts and strike down some parts but not others. Or it could vote to uphold the mandate and the entire law.

Shorter version: if the Court strikes down the individual mandate, it then could strike down or uphold all or some parts of the rest of ObamaCare but if it upholds the individual mandate, then it likely would not strike down any part of ObamaCare in the case that was before it.

cubanbob said...

Single payer is a pipe dream. it will never happen. if tried the insurance companies (and shareholders and creditors) have the mother of all takings clause case. In addition how does the government compel every provider to be forced to accept the government's reimbursement? Besides if the government can compel the providers to accept whatever reimbursement it offers the implications are clear: it can compel anyone to accept whatever compensation the government deems acceptable, from wages and prices to selling prices and discounts in any economic transaction. That is the problem with the mandate, if the government can compel someone to buy something they don't wish to buy logically it can compel them to pay what ever price it deems appropriate and compel the seller to sell at the price it deems appropriate. So unless the Democrats succeed in repealing capitalism this hasn't got a prayer.

We will find out soon enough what the court will rule by weeks end. I hope it isn't some sort of split the difference cluster that pleases no one and is an unworkable mess.

Jason said...

If I were Roberts, I would have assigned the opinion to Kennedy, if Kennedy were voting with the majority, just to screw with peoples' heads this week.

Hagar said...

Everybody writes about the "insurance" and the insurance companies, but what about the doctors?
What if the doctors go to "cash & carry" only?

Hagar said...

I have not seen a doctor in years, but my dentist and optometrist give me 20% off for paying cash now.

Richard Dolan said...

So far this term, the Court under CJ Roberts has avoided decisions without any clear-cut majority opinion. The foremost function of any SCOTUS decision is to settle the law on whatever issue the Court granted cert. If it doesn't do that, and instead leaves things confused, the Court would be failing in its key institutional duty.

Perhaps that explains why CJ Roberts joined in Kennedy's opinion in Arizona v. US. It also harbingers well for Thursday's decisions in the several ObamaCare cases if the CJ is writing them.

Almost Ali said...

Even from the dreary, lowly distance, it's unbecoming to see SCOTUS war with the White House.

Andy Freeman said...

> Even from the dreary, lowly distance, it's unbecoming to see SCOTUS war with the White House.

It's unclear why said "war" is SCOTUS' fault.

For example, it wasn't SCOTUS that suggested that overturning Obamacare was somehow wrong. It wasn't SCOTUS who mischaracterized Citizens United.

Almost Ali said...

It's unclear why [you?] said "war" is SCOTUS' fault.

Did I? No, this war was started when POTUS went after SCOTUS at the SOTU.

The vicissitudes of human nature tend to alter everything. Still, going after a jive turkey like Obama isn't worth the court's time and effort. Just announce the decision and be done with it - instead of firing spitballs.