Home / General / PoliSci, the Courts, and the ACA

PoliSci, the Courts, and the ACA


Michael Bailey and Forest Maltzman have a piece up at the Prospect arguing that the best political science modelling suggests that the Supreme Court will uphold the ACA. I don’t necessarily disagree with their conclusion, but I’m skeptical about some aspects of their specific argument. To summarize, 1)I don’t really buy the argument that Kennedy is particularly likely to feel constrained by precedent, and 2)even if I did since he can get around precedents by interpreting them the way a majority of Republican federal court appointees have interpreted them rather than the way Laurence Silberman interpreted them it’s moot. (In addition, we don’t know how Silberman would have ruled if he was on the Supreme Court; one problem with framing this as a conflict between “law” and “politics” is that it’s not bad legal practice for Supreme Court majorities to overrule or narrowly interpret their own precedents, even if one assumes arguendo that Wickard and Raich compel the upholding of the ACA.)

In this specific case, I actually think that straightforward, less sophisticated attitudinal measures tell us the most; Kennedy is more moderate than his Republican-appointed colleagues and is more likely to vote to uphold the ACA than they are, but there are enough competing imperatives that it’s impossible to predict his vote with any confidence. More complex strategic factors may well influence the final vote count and how the opinions are written, but I don’t think they will have much influence on the bottom-line outcome.

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  • jeer9

    As someone who thinks ACA was an industry-written bill intended to protect the trimmers and paper-shufflers and produce greater profits for the insurance and health care cabal, it would be more conducive to Supreme Court rooting if the legislation’s real-life consequences (good, bad, and unintended) had already been spelled out by actual implementation for a couple of years. While I think it’s plausible that the reactionaries might unintentionally rule for the side that most benefits the average citizen (as the issues seem so conflicted), it doesn’t seem probable.

  • Njorl

    I’m curious about something. I believe there is a seperate case concerning the mandate. What happens if the court just strikes down the mandate, and leaves the rest of the law in place? With the current political situation, it’s conceivable that nothing gets done about it for a long time.

    • Scott Lemieux

      It’s very hard to predict. It could lead to a short-term chaos followed by a better solution eventually, or it could just lead to most of the good stuff in the ACA being repealed. A lot would depend on the 2012 elections, of course.

    • Murc

      I’m actually rooting for this scenario.

      What I think the most likely outcome there is that the insurance industry, which swings a huge bat, twists a few Republican arms to get the mandate re-instated as something more explicitly legal.

      What I’d HOPE for is that the Republicans continue their insane intransigence and the entire for-profit American insurance industry melts down.

      If the mandate is struck down and Obama wins in 2012, I don’t see veto-proof majorities for repealing the entire ACA being assembled. I just don’t.

      • Mark

        The mandate is already explicitly legal.

        • Murc

          Not if its struck down it ain’t. To be more clear, the above represents my best-case scenario (the mandate is struck down on narrow technical grounds, the rest of the ACA is left intact) and what I think would happen afterwards.

          The odds of the first step in that chain happening are, I know, slim.

          • R Johnston

            Of course if the mandate is struck down then there is no longer any sense in which we are a nation of laws and the term “legal” will cease to have meaning. On any sane reading of the constitution and its history the mandate is not just legal but so obviously so that anyone claiming otherwise in court would be held in contempt and prosecuted for abuse of process.

            • Hogan

              That’s what I thought about Bush v. Gore. And yet.

      • timb

        Agreed. If the mandate goes away, private insurance companies are doomed….if the Republicans don’t control both the executive and legislative branches

  • Is “Is this the signature legislative accomplishment of a Democratic president up for re-election?” really a complex strategic factor?

    • Njorl

      Yes. On the one hand overturning it could be seen as making Obama look weak, make him look like he wasted literally months of time when our congress should have been dealing with the economy. On the other hand, it could look like the right-wing elite killing a popular program hard fought for by the people’s elected representitives at the same time as they are ardently defending the wealthiest 1%.

      • cpinva

        or, it could open the door to a true “public option”, framed as the only way to get around the politics of the court. possibly. maybe. in my fantasy world.

        by definition, “law” and “politics” are always in conflict, it’s the nature of the beast in any kind of democratic society. the supreme court is no different, and never really has been. i remain unconvinced that the constitution ever actually anticipated they would be, except in some kind of “perfect world” way. a lifetime appt. doesn’t miraculously relieve you of beliefs and predjudices acquired over a life.

        that’s why thoroughly vetting any prospective court nominee is so critical, and why bork was rejected; he’d established a body of work that identified him as so extreme and out of step with anything even vaguely recognizable as “mainstream”, as to be a danger to himself and the rest of the country, should he have been appointed.

        • Or it could just let a bunch of people die for the impertinence of not having enough money to pay for treatment for a condition(s) that insurance companies don’t want to pay for, or not having enough money to buy insurance at all.

          It’s your money or your life.

          • Lee

            This is much more likely than a true public option coming into existence if the ACA is struck down by the Court.

            • cpinva

              hey, i said in my “fantasy world”!

        • Anderson

          Some conservatives are indeed anxious that a public option would be the result of striking down the ACA.

          … Re: the OP, modeling is interesting for what it tells us about trends, but the idea of its predicting the outcome of any particular case just sounds, well, wrong.

      • Yes. On the one hand overturning it could be seen as making Obama look weak, make him look like he wasted literally months of time when our congress should have been dealing with the economy.

        There’s another hand?

  • Snarki, child of Loki

    My prediction, mostly based on the overall complexity of the issue and outcome, when combined with the high stakes of the decision, is “part sustained, part overruled” in an utterly confusing and incoherent mix.

    With an dollop of “Our consideration is limited to the present circumstances” for extra weasel-flavored goodness.

    And yes, they brought this cynical reaction on themselves.

  • Anon21

    People will be surprised by how not-close this ends up being. 8-1 upholding the individual mandate, Scalia concurring in the judgment only. Book it!

    • timb


  • Josh G.

    If the ACA is overruled, it seems likely that what Nathan Newman describes as the “odd reverence” for judicial review among U.S. progressives will finally end. As Newman notes in the linked article, the Supreme Court has been a profoundly reactionary force throughout most of U.S. history, and only served progressive purposes for a scant few decades after World War II.

    Most western European countries don’t have supreme courts that are hyper-empowered to strike down national laws, yet this does not make them totalitarian hellholes. As in many other areas, the U.S. is really an outlier here, and seldom in a good way.

    • Murc

      If I recall correctly, most countries that operate on a parliamentary model also operate on a model where the laws of the legislature are supreme. That is, they don’t need judicial review because everything their legislature passes is self-evidently totally legal, as there’s nothing it could possibly conflict with.

      And even in those countries, the courts are often deeply involved in determining the scope and application of those laws.

      Canada has a pseudo-Constitution, the Charter of Rights and Freedoms, and the decisions with regards to if laws conflict with the charter is made by… Canada’s high court. And it works okay for them as far as I know.

      • Scott Lemieux


        • Murc

          Hmm. You know, I withdraw the remark. Spending some time digging into it the Charter is a LOT more comprehensive than I’d thought it was, and hell, it was drawn into existence as part of the ‘Constitution Act.’ So yeah, it’s a full-fledged Constitutional document. I was wrong to use ‘pseudo.’

          Next time I’ll read up more carefully before posting.

          I believe my larger point, that the Canadians have a system with fairly comprehensive judicial review rather than legislative supremacy, and that they seem to get along fairly well, is only strengthened thereby, however.

          • Anonymous

            But also note the existence of the notwithstanding clause. Parliament can reinstate an overturned law, as long as they’re willing to acknowledge the unconstitutionality of if explicitly.

            • Scott Lemieux

              Sure, but outside of secessionist Quebec governments it’s a dead letter, which tells us something important about judicial review.

  • CJColucci

    My guess is that we get Kennedy and probably one or two others because an opinion that strikes down the ACA without also declaring most of the 20th century unconstitutional just won’t write, and there’s only so many times in a generation that you can go to the well Bush v. Gore style.

    • “…and there‚Äôs only so many times in a generation that you can go to the well Bush v. Gore style.”

      This restriction only applies to the Court’s pre-revolutionary period.

  • timb

    Scott’s consistent pessimism on this topic annoys the living hell out of me, even though I recognize he’s sincere and consistent about it.

    Overturning the mandate on Commerce Clause grounds, as Justice Kennedy would know, changes the ability of Congress to regulate the economy or the environment or the War on Drugs or Medicaid or, well, the New Deal.

    Overturning a law which took a well-publicized year to pass by judicial fiat is troubling, but going three quarters of the way to Lochner is a little bit too much for several justices…I predict.

    Still, 7-2 or 6-3. Roberts and Kennedy will support it and the seventh vote is contingent on how honest Scalia is.

    • Murc

      The thing is that they don’t need to overturn it in a way that changes the ability of Congress to do any of those things. They can craft a very, very narrow opinion which overturns it on incredibly technical grounds, and if they really want to they can always pull out the Bush v. Gore card.

      I’m not saying that’s gonna happen. I agree with your numbers in general, although I think the smart money is on 6-3 rather than the 7-2. But they don’t have to write a broad opinion if they don’t want to.

  • Zoltar the Magnificent

    So since I’m not a lawyer, I’m curious about why, if imposing a tax penalty for not buying insurance is (potentially, for the Roberts court) unconstitutional, there can be tax penalties for not owning a home, not being married, and not paying student loan interest. What’s the difference?

  • Tracy Lightcap

    I also think the ACA will be upheld.

    The one fly in the ointment: Justice Stevens has retired. There’s speculation that he had a strong effect on Kennedy’s vote in the past, usually toward a more moderate position. Now that voice is gone.

    Mind, I do think that Kennedy will vote to uphold at least the bulk of the law. We’ll see on the mandate. There I think the vote that counts is Scalia’s. Two of the decisions below upholding the law were by former clerks of his. I get the feeling that they have heard the boss on this before. (And, btw, you should hear my wife, the management labor attorney, on the subject of Scalia and upholding federal administrative power.) If Scalia writes a Raich-like concurrence, then I think the ACA sails through. But, as Scott has pointed out before, the guy is nothing if not unprincipled.

    Wish I could predict this as confidently as our authors. We’ll see soon enough.

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