Obamacare SCOTUS Prediction Thread

By Cato the Elder

My take? They’ll punt. They’ll mouth something along the lines of “come see us again in 2014 when the insurance requirement kicks in.” Sorry folks, I just don’t see the Roberts court having the cojones to rule on the substance during election season.


  • David Dickinson says:

    I too was surprised at the intensity of the questionning. I think more justices are going to find a problem with it than we think (6-3 against…Sotomayor surprises) although for different reasons and, lacking severability, the whole thing goes down.

  • NateDogg614 says:

    Still if the liberal justices were arguing for the law more effectively than the Solicitor General was, well that’s just pretty sad as far as I’m concerned.

    I think the law gets at least 4 votes no matter what. David, while 6-3 against sounds nice, I just don’t see it happening. It will either be 5-4 against, 5-4 in favor, or 6-3 in favor.

  • edmundburkenator says:

    Since this is a prediction thread… 7-2 to uphold. Thomas and Alito are the dissenters.

  • One of the lessons I took away from the Stafford School District -vs- Redding was that questioning doesn’t necessarily tell us much about what the court will do when looking at the law. (I thought the questioning in that case appalling, but agreed ultimately with the decision.)

    On the other hand, Bush-v-Gore taught me that the Supreme Court, despite our best attempts, isn’t above playing politics.

    I’ll predict 5-4 in favor, with the regular suspects on either side and Kennedy in favor. I actually wish I thought it would be more interesting.

  • Independent Voter says:

    If this is shot down, what happens to all the people who are now covered through age 26 under their parents’ health insurance? Those with pre-existing conditions who now enjoy having medical coverage? All the children who now are covered because of Obamacare? And all the diabetics and breast cancer cases?

  • Cato the Elder says:

    I’m prepared to reverse myself and say that there will be a lot of people in here screeching about judicial activism in the foreseeable future.

  • Honestly, I wish we just admitted that judges are human beings with natural and willfully deliberate human biases (ie, “judicial activists”) that are both liberal, conservative and radical (on either side of the aisle) instead of pretending that they are somehow above all these things.

  • AFF says:


    5 to 4 against, thus continuing our inevitable march towards a single payer health care system.

    Cheers to that.

  • Independent Voter says:

    We will either pay for universal health care through a mandate or we pay through our taxes for everyone who will go on Medicade because that is the only way they can get coverage. Not a great choice.

  • Cato the Elder says:

    “Honestly, I wish we just admitted that judges are human beings”

    Notice how I got on both sides of the bet 😉

  • liberal anthropologist says:

    I predict SCOTUS will let it pass – wrongly….

    And then it will be the most divisive piece of legislation and will be repealed with 20 years. Why?

    Because when the social conservatives gain power over it, they will make trans-V look like child’s play. They will use it to force gays to do things, women to do things, etc.

    And this decision will allow all of that.

  • Cato the Elder says:

    Actually, I think it’s much better for us from a political perspective if it’s upheld. The tea party types will be spitting nails, and I’d much rather go into election high season with a pissed-off mob than with the lukewarm complacency that a SCOTUS rejection + Romney will equal.

  • David Dickinson says:

    If this stands, it is the end of the United States as we knew it. The federal government will enter a new era of overt, centralized power.

  • edmundburkenator says:

    “Actually, I think it’s much better for us from a political perspective if it’s upheld.”

    Yeah, I think you are right (from the R perspective), there is more risk here for the Rs either way though. You’ll get the crying mom’s with kids with cancer who are going to lose their insurance if it gets dumped and you have the godfather of the individual mandate running against the individual mandate if it’s upheld.

  • Liberal Anthropologist says:

    Any prediction updates? I am still sticking, but time marches on.

  • Well, it is a HUGE political gamble for Republicans if they don’t strike it down. Yes, it could galvanize the tea party wing, but despite all of the primary back and forth, I think they will tend to vote regardless. And the truth of the matter is, Americans all like stuff for “free” — as long as it is them and not someone else getting the free stuff. (Free for me, but not for thee, to mangle an old Quaker saying.)

    But if it passes and Obama wins, he will almost certainly replace a few of the justices, and likely at least one conservative one. It’s hard to imagine it being struck down in our immediate future at least, especially as pieces of it are enacted and the arguments begin to include people who have used it well and wisely.

  • AFF says:

    If BO wins which conservative Justice (I’m counting 4) would he be replacing? Them boys is relatively young for the SCOTUS.

  • edmundburkenator says:

    You know, I heard Scalia’s broccoli analogy in the car yesterday as well as his burial analogy. He knows these don’t hold water, so why is he voicing them? Lawyers?

  • AFF — well, all of the justices DO have access to gold plated health coverage — you know, the kind the government pays for! 🙂

    It’s interesting speculating on what Roberts might do. He’s made his career on being anti-activist, even to the point of (from a traditional orginialist/conservative perspective) perhaps diminishing the power of the judicial branch in comparison to the executive and legislative. Will he continue to align himself that way now?

  • Cato the Elder says:

    Wagging tongues say that if Kennedy bolts, he’ll cross. If they don’t swing Kennedy that’s just no way in hell I see him being the deciding vote to uphold, but stranger things have happened.

  • Eric the 1/2 troll says:

    “Will he continue to align himself that way now?”

    We know Scalia won’t – even though he said this in 2011:

    “If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”


    “If the current society wants to outlaw discrimination by sex…you have legislatures.”


  • I’ve teased for years that when Scalia uses the term originalist, he doesn’t mean the founding fathers, he means original to HIM! 🙂

  • edmundburkenator says:

    Scalia’s opinion in Raich is the problem for him. Are wagging tongues saying he’s looking for cover from Kennedy?

  • Liberal Anthropologist says:


    In what way does the broccoli argument not hold water? It is completely valid and goes to the heart of what is the limiting principle – something the government’s attorney could not even remotely clearly define.

  • Liberal Anthropologist says:

    Shockingly on point lines of questioning.

    I have to say that even if they go the wrong way and uphold it, I think they clearly considered my primary argument on limiting principle.

    The only thing bugging me (at least from news reports) is the lack of the inverse point which is the assertive scope of the 10th ammendment. They don’t seem to have specifically addressed that.

    If it is found constitutional, it will STILL be gotten rid of. For several reasons, but it SHOULD be found unconstitutional.

  • edmundburkenator says:

    LA, a choice to not purchase broccoli doesn’t impose costs on everyone else. A choice to not purchase insurance does — due the the mandates imposed on hospitals.

    Right now, to stay with the analogy, you are forcing grocers (hospitals) to give broccoli (care) away.

    The slippery slope does not exist because we are talking different slopes.

    What is it about broccoli that might compel Congress to use its commerce clause?

    I agree with what I think the point Cato was making: Scalia is actually making the argument that the health market is unique and dragging Kennedy with him — but he wants Kennedy to lead in making the argument.

  • edmundburkenator says:

    By the way, the burial analogy make the point for uniqueness even more strongly.

  • Cato the Elder says:

    The problem is with EMTALA. The argument is that cost shifting mandated by EMTALA makes the health care market unique. In other words, the government created the problem that it is now forcing us to solve with the individual mandate.

    FWIW I don’t believe that Scalia was making that argument. If consuming a particular food is connected with wellness and we’ve established that everyone must participate in the market in order to hold down costs then why shouldn’t consumption of a particular food be compelled?

  • edmundburkenator says:

    Yes. The “problem” is with the law Reagan signed into law mandating care.

    Cato, compelling people would become a MARKET function, not a government function in this scenario. You might get insurance companies that require it. If you didn’t want to eat it go the provider that doesn’t require it.

    That’s the different slope.

  • Cato the Elder says:

    Ed, it’s already the same slope when you empower the HHS to issue regulations requiring private carriers to cover treatments. The very same authority could be used to require carriers to issue dietary guidelines, that act makes no such distinctions.

  • edmundburkenator says:

    Dietary guidelines would not be law.

    It seems to me that if I were an insurance company required to cover treatments, I start telling my customers how to avoid having to undergo these treatments (prevention).

    That may mean private carriers ask people to eat broccoli. But if I hate broccoli, I either go to a carrier that doesn’t push broccoli or just pay my “fine” and go without insurance.

  • EB,

    You are off base on the argument and it is surprising how many on the left don’t even contemplate it.

    The government can force insurance coverage in order to reduce the costs for others in the market since they must be covered.

    The government can force XXXX in order to reduce the costs for others in the market since they must be covered and their services paid for regardless.

    Eating brocoli makes you healthier and less needful of expensive care. You must eat broccoli in order to reduce the costs on others.

    If the government can force behaviour based on the goal of reducing the costs to others, then their is no limit in the name of that goal.

    Abortion increases health care costs by shrinking the pool further than it would have been. Abortion can be regulated/stopped to maintain a larger pool of insured.

    There is NOTHING that cannot be deemed affecting the market for health care. Ban skydiving. Put speed limiters on cars. Endless.

    The govt should not be forcing hospitals to care for free. That is also unconstitutional.

  • By the way… 90% of the laws on the books are unconstitutional.

  • Cato the Elder says:

    “Dietary guidelines would not be law.”

    I really don’t see the distinction (from a functional perspective) between regulations that carry penalty and laws that carry same.

  • I remain amazed as I read dozens of articles on the hearings at how many leftist thinkers truly cannot wrap their head around the broccoli question – and worse – dismiss it as illegitimate. From Eugene Robinson:

    “Justice Antonin Scalia raised the specter of an all-powerful government that could even “make people buy broccoli” if it wished. Scalia’s mind seemed to be made up, but Kennedy seemed to be genuinely looking for a principle that permitted a health insurance mandate but not a broccoli mandate.

    And Verrilli gave him one. The market for health insurance is inseparable from the market for health care, he argued, and every citizen is a consumer of health care. Those who choose not to buy health insurance require health care anyway — often expensive care at hospital emergency rooms — and these costs are borne by the rest of us in the form of higher premiums.”

    But it seems OBVIOUS to me that Verrili’s argument in no way provides a limiting principle. See logic below:

    Health Insurance is regulatable because:

    “The market for health insurance is inseparable from the market for health care, he argued, and every citizen is a consumer of health care. ”

    This means that the powers should be limited to regulating markets that are “inseperable” from the market for health care.

    But no market is “inseperable” from the health care market. The market for healthy food impacts the health care market as the purchase and consumption of healthy foods is one of the most deterministic factors in the services required in health care.

    Is the sports market inseparable? Since football players need healthcare (as does supposedly everyone) then can I not regulate their sport to decrease their negative impact on the health care (and insurance) markets.

    Why is this not incredibly obvious? It is like a blind spot between the two sides.

  • And in this same article:

    “When people talk about out-of-control government spending, they’re really talking about rising medical costs that far outpace any conceivable rate of economic growth. The conservative solution — shift those costs to the consumer — is no solution at all.”

    No explanation. No argument. It is just obvious to him that costs cannot be shifted to the consumer.

    In fact, that is the best option for health care:

    1] Deregulate most aspects of providing health care. Let unlicensed people do more, let nurses do more, etc.

    2] End all subsidies and government involvement in insurance.

    People will buy catastrophic policies like they do for their house or car. They will pay out of pocket for routine services. These services will drop down in cost to dramatically lower prices provided by far more service providers.

    That is OBVIOUS to me.

  • “1] Deregulate most aspects of providing health care. Let unlicensed people do more, let nurses do more, etc.”

    Does this include more over the counter drugs? Including, but not limited to, antihistamines, birth control and cough syrup with codeine, basic antibiotics — all of which are easily available over the counter in nearly every other country.

    Personally, I’m fine with that. But most conservatives I know wouldn’t be, for reasons that have nothing to do with the health care bill.

  • Liberal Anthropologist says:

    Yes. Exactly that. And I want Joe Schmoe dentist from Guatemala to be able to practice dentistry on people who voluntarily come to him without a license and fear of arrest.

    I want the nurse to be able to do the 90% of things she knows how to do better than a doctor that she is not allowed to do today.

    I want to not solve every time that something goes wrong with the above with a new regulation making it harder again. I want to accept a certain amount of mistakes and failure in exchange for a much more robust system that actually helps many more people than are helped today.

  • Ok, I think that would at least be worth talking about. Probably both sides of the political spectrum would have to give up some things that they wouldn’t be happy about, but if it meant more care for more people with less cost, it should at least be part of the discussion.

    Of course, it isn’t, but at least we can think about how the world we be if we were in charge……:)

  • Liberal Anthropologist says:

    By the way…. Highly recommended article:


    Amongst many interesting quotes:

    “And in a survey of 2,000 Americans, Haidt found that self-described liberals, especially those who called themselves “very liberal,” were worse at predicting the moral judgments of moderates and conservatives than moderates and conservatives were at predicting the moral judgments of liberals. Liberals don’t understand conservative values. And they can’t recognize this failing, because they’re so convinced of their rationality, open-mindedness and enlightenment. “

  • Liberal Anthropologist says:

    “Mr. Verrilli was trying to make the point that a decision not to buy broccoli doesn’t increase the price others must pay for broccoli in the same way that a decision to forgo health insurance increases the premiums others must pay for health insurance. But it seems to me that a succinct answer to Justice Scalia’s question is that the commerce clause would not limit Congress’s ability to regulate broccoli — if members of the House and Senate were crazy enough to pass legislation requiring all of us to eat green vegetables and if that were deemed a rational way to regulate commerce. The same could be said of health clubs. ”

    There we have it. The above is from a NYT article by Jimmy Stewart.

    It continues to amaze me that the left is amazed that this argument is serious. It really is. And the above illustrates it. He seems to concede that nothing is out of bounds and Congress is only limited by its own desire.

    THAT IS SIMPLY NOT OUR GOVERNMENT. Congress has limited powers and they are enumerated. It is as if the 10th ammendment doesn’t exist.

    He is right. If this is struck down the on lack of limitation, the commerce clause will be set back in its power. Good.

  • LA — I don’t doubt that quite a few liberals can’t understand conservative values. But I can tell you that quite a few conservatives have said some, um, very strange things to me, right to my face, when I didn’t tow their party line. I don’t mind (obviously, or I wouldn’t comment on conservative boards) but there isn’t a lot of thoughtful dialogue on either side right now.

  • liberal anthropologist says:

    I agree. If you read the article I quoted from, the author was a liberal trying to understand the complete disconnects that occur in communication. I cut and paste that, but there are certainly blinders that conservatives have.

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