Why the Whole Health Care Law Is in Jeopardy

Why the Whole Health Care Law Is in Jeopardy

By Sean Trende - June 27, 2012

The real Supreme Court news on Tuesday wasn't the Arizona immigration decision or even the summary reversal of the Supreme Court of Montana in the "Citizens United 2" case. It was that the chief justice of the United States didn't write any of these opinions.

This is critically important, because we can now deduce with a reasonably high degree of certainty that John Roberts is writing the lead health care opinion. If we are right about this, then the law is in even deeper trouble that most observers imagined.

Let’s start from the beginning. The Supreme Court tries to spread its opinions equally among the justices, both for the term and for its monthly sittings. There are three opinions left and, fittingly, three justices who have authored fewer than seven opinions: Roberts, Sonia Sotomayor and Clarence Thomas.

Roberts is the likely author of the health care decision for three reasons. First, Thomas is the only justice without an opinion from the December sitting, so he is probably authoring the First American opinion still outstanding from that sitting (and it unlikely that a staunch originalist like Thomas could hold together a majority on an issue like the health care law).

Second, it is unlikely that an opinion of this magnitude would trickle down to a junior justice like Sotomayor. The Alvarez opinion from February seems more appropriate for her.

Third, Roberts hasn’t authored an opinion from the March or April sittings. He’s the only justice of whom that can be said. This, more than anything, makes him the likely author of the only opinion outstanding from either sitting, the health care law.

If we’re right about this, then it’s a real problem for the Affordable Care Act. Justice Anthony Kennedy gave slight indications during oral arguments that he at least sympathized with the government’s position; Roberts did not.

Some have suggested that the chief justice would vote strategically. The idea is this: He is the last justice to cast his vote during conference. If there were four votes to strike down the law, then he would provide the fifth to do the same. But if five votes had been cast for the law, Roberts would then cast a sixth vote in favor.

This would allow him to write the opinion either way, and to control how broad the opinion emerging from the court was. This is what Chief Justice William Rehnquist was suspected of doing in 1999 in United States v. Dickerson. He had been an ardent foe of Miranda, and most thought that he was a sure vote to overrule it when given a chance. But he surprised people by announcing a 7-2 decision upholding Miranda.

But there is a problem with this analogy. The task of assigning the author of an opinion falls to the most senior justice in the majority. Had Rehnquist dissented in Dickerson, the most senior justice in the majority would have been John Paul Stevens. Rehnquist had reason to fear that Stevens would assign the opinion to himself. Because Stevens was the most liberal member of that court, and given some of the nuances of Dickerson, Stevens could have gutted decades of decisions chipping away at Miranda if he had written a broad enough opinion. The chief justice’s incentives to write the opinion at all costs were fairly high.

Absent Roberts, the most senior justice in a majority to uphold the law -- who would presumably assign himself the opinion -- would be Kennedy. But Kennedy is actually fairly conservative on federalism issues. He joined the opinion of the court in United States v. Lopez and United States v. Morrison, two critical Commerce Clause cases. Even if he wanted to uphold the health care law in its entirety, it’s unlikely he would write an opinion that would set the stage for overruling those other decisions. In other words, Roberts doesn’t have the same incentive that Rehnquist might have had to vote strategically. (In fairness, we should also bear in mind that Rehnquist might have voted sincerely in Dickerson.)

So, do I see any chance at all that the law will be upheld? Yes, and here’s why: First, oral arguments are not dispositive, and I think conservatives have been irrationally exuberant over the tone of those arguments. The Arizona immigration decision and the juvenile life-without-parole cases looked to be in real trouble post-argument, and yet both turned out fairly well for liberals.

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Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at Follow him on Twitter @SeanTrende.

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