Obamacare 6-2: Who will be Justice Defector?

Had to run some errands over lunch and flipped on the radio to see what Rush was talking about. Basically, he was rehashing this piece from the WaPo — the theory that if the Supremes come down 5-4 in favor of Obamacare, then Chief Justice Roberts — meaning to ease social tensions with a 6-2 — will go with it, so he can himself write the majority opinion:

Walter Dellinger, a former acting solicitor general and one of the health-care law’s most ardent constitutional cheerleaders, has long predicted that the vote upholding the legislation will be lopsided and that Roberts will be in the majority to write the opinion. (When on the prevailing side, the chief justice writes the opinion or chooses the colleague who gets the job.)

“The reason I think Chief Justice Roberts will write the opinion is because I think he will want to write a narrow opinion,” Dellinger said. It would recognize that there are limits on Congress’s powers, he said, but that the Constitution’s commerce clause is fully met in a law that deals with the “intimately intertwined” issues of health care, insurance and interstate markets.

Rush was gassing away about this rather redundantly, so I didn’t listen long, but I’ve heard two other theories since Tuesday, both fretting from the opposite side of Rush. They go like this: if it looks like Obamacare is going to crash and burn, a reputation-conscious, ambitious Justice Sotomayor — in an effort to be thought a potential swing vote, down the line — might see this as a safe, highly visible opportunity to demonstrate her independence.

The second theory — much more elaborate, belabored and slightly nutty, I think — wonders whether, should Obamacare flame out, Justice Kagan might join the majority in order to demonstrate that her recusal was never necessary and to reassure independent voters that, even if they are unhappy with some things, they can trust Obama to appoint Justices who are not mere water-carriers.

May I say, I thought the person who came up with the Kagan theory was going out of his way to make himself miserable.

It’s interesting, isn’t it? People who dearly want Obamacare to crash and burn are torturing themselves by obsessing on far-flung theories about how it may survive, and some who want to see it survive are making themselves squirm imagining how it may be defeated.

Such a lot of anxiety on both sides driven, I suppose by the conventional wisdom that everything is up to Anthony Kennedy.

I’ve decided to be a theologian-philosopher about it, trusting that whatever happens, God’s got a hand in it anyway, and that we’re facing a chaotic summer and election, regardless of what happens in the Court, simply because it is the unstoppable way of narrative thrusts.

Your thoughts?

About Elizabeth Scalia
  • Tim

    I would hope that all the justices would decide this case based on how they interpret the Constitution, not on how they perceive their vote will affect public opinion.

    If Roberts or Sotomayor (or any of the justices) decided based on how the public would react, it would indicate, at least to me, that the Court can be just as political as the other branches of the government, thereby reaffirming the conviction that the Supreme Court is really Right wing vs. Left Wing, and not interpreters of the Constitution.

    I’ve haven’t heard or read much from Sotomayor, but based on what I’ve heard from the Chief Justice, I doubt he would use his vote so politically.

  • Steve Colby

    “… trusting that whatever happens, God’s got a hand in it anyway”
    Zedekiah comes to mind here. God may have a hand in it, but it still may hurt.

    [The lesson of the crucifix! :-) -admin]

  • http://egregioustwaddle.blogspot.com/ Joanne K McPortland

    I like your approach. To avoid being spun by any but my own biases, I made sure I read the transcripts of the arguments—fascinating, actually, even without inflection—before turning to coverage from any other perspective. Anybody who’s read more than one SCOTUS decision over the course of the country’s history should know there’s no predicting, but it’s irresistible. My favorite thing from the whole media frenzy was a WaPo reporter who tweeted, on day 3, that Jeffrey Toobin was accessing an online thesaurus, desperate to find “something that wrecks NOT train plane ship.”

  • http://frmartinfox.blogspot.com Fr Martin Fox

    Various thoughts:

    1. If I understood correctly, the Chief casts his vote first in deliberation. So he would have to guess which way the wind is blowing, unless he did some checking with Kennedy and Sotomayor beforehand. I wonder if that happens? Or else he could abstain and wait to vote last? Again, I wonder if that’s considered cricket?

    The thing is, if the Chief is in the minority on the vote, he doesn’t decide who writes the majority opinion. So waiting to vote or switching might be considered bad form.

    2. I wondered if Kagan might not recuse herself, once she sees her vote is unneeded. (Again, IIRC, she votes last as junior justice.) It might serve to make Thomas, and the majority, look bad.

    3. Trying to think through the scenarios, I think if Roberts favors overturning, but would seek to be the sixth vote to sustain, he first has to be sure there aren’t five votes to overturn. That means they all vote, Roberts votes first to overturn, and if he loses, then Kennedy–assuming he votes to sustain–assigns the opinion. Roberts can always join later. Outcome: 6-3 to sustain, opinion written by Kennedy (because I think Kennedy only votes to sustain if he finds a satisfyingly narrow basis).

    Another scenario: Roberts and Kennedy vote to overturn, and when it reaches Sotomayor, she decides to join majority. This could mean that the majority opinion is crafted more narrowly, costing liberal jurisprudence less. Maybe to keep her as the sixth vote, the majority opinion gives ground on severability–meaning more of Obamacare is saved. Now it’s 6-3 to overturn.

    Third scenario: under either of these, Kagan could, anytime before the opinion is issued, recuse herself. Hence either a 6-2 vote to overturn, or a 5-3 vote to sustain. I have a hard time seeing her vote to overturn unless she truly believes it; because it would be such a gut-punch to her allies. Alternately, she could cast a vote “against” on severability or the Medicare expansion. (Everyone seems to assume the tax question goes heavily against Obama, I agree.)

    What fun! We can do this until June!

  • http://frmartinfox.blogspot.com Fr Martin Fox

    Not that my predictions mean anything, but here goes:

    On whether it’s a tax or a penalty, the vote is 8-1, with only Breyer defending the tax. Kagan votes with the majority; Roberts has her write that opinion.

    On the mandate, the vote is 6-3 to overturn, with Sotomayor joining the majority; Roberts assigns her the opinion.

    On whether to sever only the mandate, or some parts, or else throw out everything because it can’t be severed sensibly: the vote is a three-way split, with Kennedy writing a plurality opinion that splits out the mandate and a couple of things, leaving most of the law intact. Four votes not to sever.

    On the Medicaid expansion: 5-4 to declare the Medicaid expansion is constitutional, with Roberts writing the opinion, and he revisits the Dole precedent, seeking to provide some sort of limitation on the feds’ spending power.

    If it played out this way, Obama would, officially, win on two of the four counts; and the opinions taking his position would be written by Kennedy and Roberts, respectively; the two he lost, would be written by Kagan and Sotomayor, respectively.

    This would be a way to blunt the accusations of partisanship, and to split the baby as it were.

  • Mike R

    I guess I find it sad and shocking to read that the third branch of our Democracy would demean itself so much to make a decision for personal and political reasons rather than their job which is to interpret if the law is Constitutional.

  • http://elizabethk-fthnfort.blogspot.com/ Elizabeth K.

    I’m about where you are. I’m biased, but I can’t imagine how anyone can take the government’s arguments seriously, at least for the mandate. I think it should be a Hosanna-Tabor on that. But I won’t hold my breath–partly because I’m not a lawyer, and I don;t think in all of the lawyerly ways that the justices do.

    Also, as with everything else in this crazy election year, we just don’t know how things could go from here. Realistically, even if I hope for the mandate to be overturned (as it should be just based on the constitution) we have every reason to expect that the decision will be spun by this administration in the way that serves it best. Given that the decision comes down in June, it gives me another reason to be concerned about this summer, what with the Trayvon Martin tragedy, and the Occupiers gearing up, and all of the apocalypse in the air.

  • http://cinemacatechism.blogspot.com/ Bender

    First, the Supreme Court conference procedure –
    Traditionally, the DISCUSSION begins with the Chief Justice and then goes around the table in the order of seniority. But the VOTING starts with the least senior and ends with the CJ. Often times the discussion makes it clear which way the justice will vote, so that a separate voting round is not necessary, but not always.

    Second, the brief writing –
    The senior justice in the majority will assign someone to write an opinion. But that does NOT necessarily mean it will be the Court’s opinion. If Roberts were to jump sides, someone else in the majority (e.g. Kennedy) could write what might initially be a concurring opinion. And if the Roberts opinion failed to be joined by the others in the majority, and the “concurring” opinion by Kennedy was joined by the four others in the majority, five being a majority of the Court, then the Kennedy opinion would be the Opinion of the Court. So, Roberts jumping to the other side upholding ObamaCare does NOT guarantee that he could limit the damage.
    Moreover, during the brief-writing stage, justices can switch sides if they don’t like what their original side says or like better what the other side says.
    The decision of the Court is not FINAL until it is announced from the bench. Until then, a justice is entitled to ping-pong back and forth as many times as he or she likes.

    Third, turnabout is fair play –
    Someone has been reading what I have said over at Althouse. Unless either one feels really strongly about the case, I can easily envision Kagan and/or Sotomayor joining a majority to strike down the individual mandate. I can also see the severability issue going 7-2 or 8-1 to strike the whole thing if the individual mandate goes, considering the immense difficulty of having to try to figure out how all the interrelated parts go together and which can stand alone, such that Congress can start from a clean slate.

    And just because I have been snarked at here by some with “what do you know???” — Yes, I am a member of the Bar of the United States Supreme Court.

  • http://cinemacatechism.blogspot.com/ Bender

    My prediction? If there is anything you learn in the practice of law, it is that you cannot predict a legal outcome, ever. You can never be sure which way the judge will rule, the jury will find, or especially how the Supreme Court will come down on something.

    But given the concerns expressed by them in the oral argument, and considering the issues on the merits, I think the Court would be hard-pressed to uphold the individual mandate, and would need to twist itself in pretzels to justify it. Many of the justices are reasonable and rational, and the individual mandate is objectively without any reasonable foundation in the Constitution. However, you never know.

    I would be appalled and shocked if the Court upheld the individual mandate, but not surprised. If that makes any sense.

  • http://frmartinfox.blogspot.com Fr Martin Fox


    Thanks for the information about the deliberations. I was relying on what I’d read in news reports.

    Did I unintentionally plagiarize something of yours? Sorry about that!

  • http://frmartinfox.blogspot.com Fr Martin Fox


    I agree that if a justice tips the outcome by a vote that reflects politics or personal preferences, that demeans the judiciary. On the other hand, would still feel the same way if a justice joined the majority in order to exert a positive influence on the resulting opinion, or in the belief that a 5-4 vote might be harmful to the nation?

  • http://cinemacatechism.blogspot.com/ Bender

    Father, no, I’m just tweaking the Anchoress in her mentioning that “nutty” second theory. I’m sure I’m not the first to think that Kagan might actually want to prove her indepedence if the individual mandate is going to be struck down anyway. After all, what difference does it make if it is struck down 5-4 or 6-3?
    And if she feels strongly enough about the issue to remain in the minority, I would expect her to write a dissenting opinion explaining her reasoning.

  • http://www.friendsofportia.blogspot.com Judith L

    I can never remember who said “What is not sustainable cannot be sustained”. In view of our terrible debt and deficit, even if Obamacare is permitted to go into implementation as is, it simply cannot be sustained indefinitely. Of course, it can be the cause of great inconvenience and suffering before it helps to bankrupt the country.

  • Jen

    Elizabeth, don’t you mean 6-3, not 6-2? Or am I missing something? How did we get from 5-4 to 6-2?

  • http://cinemacatechism.blogspot.com/ Bender

    Me, above: Second, the brief writing

    Oops. I’m sorry. Rather fundamental error there. Not thinking as a judge, but as a lawyer. That should be “the opinion writing,” there and elsewhere in that comment. (The justices do not write “briefs,” they write opinions. Whichever opinion garners the support of a majority of the Court is the Opinion of the Court. Thus, there are really two or more votes — the initial one at the Friday conference, but then the more important “vote” when justices decide whether or not to join an opinion or merely to join in the Judgment of the Court, which happens right up until the judgment is announced from the bench. If no opinion gets a majority to join in its reasoning, and there is only a majority agreement on the ultimate judgment (outcome), then whichever has the most support in support of the judgment is a plurality opinion, which has much less precedential weight.)

  • http://www.xavierz.blogspot.com Xavier

    I don’t know that referring to the Supreme Court of the United States as “the Supremes” could ever have been considered witty. Why the thread-bare and denigrating usage should continue here, to the detriment of serious discussion of a pivotal moment in our country’s history, is a mystery. And scarcely an edifying one. It’s hardly in keeping, either, with the proper respect of persons and institutions and the civility of tone that Mrs. Scalia has on other occasions rightly and wisely championed.

  • Kevin

    Yes 6-3 i think was meant? Maybe not though Bender, i am extending the secret supreme court bar membersip handshake to you. Helpful comments. The IM part of the opinion i can see being 7-2 or unanimous at this point. Breyer and Kagan seem the most likely to hold that Congress has the power to order us to eat broccoli and spinach.

  • http://frmartinfox.blogspot.com Father Martin Fox


    It may not be witty, but I don’t see a lack of respect. It isn’t the College of Cardinals, although there is a mindset that tends to think of the judiciary as a kind of priesthood. (Quiz: of the three buildings housing the three branches of the federal government, which one looks and feels most like a temple of old?)

  • doc

    In The Brethren, Woodward pointed out a couple of times when Chief Justice Burger flipped himself to the majority in an attempt to limit the damage that a Brennan opinion would have caused.

  • Mike R

    Fr. Fox: while I see your point that a justice aligning his/her opinion to the majority may have some benefit to bring us together, I still would not support it. I guess it is because I don’t see that as the role of the SCOTUS. I guess I’m what you would call a Constitutionalist- they should decide the case based upon the Constitution and let the chips fall. Also in a sense by making it appear to be more a majority ruling would that really foster healing? I would say that the public opinion is about split on this law. I think striking part of it down (and of course all of it down) would force Congress back to the drawing board and perhaps they could come up with what I think would have been the better approach- small chunks at a time preferably starting with ones we all agree with. Peace

  • Rick

    We stopped trying to be a nation of laws a long time ago. Members of Congress did not read the Obamacare law before voting on it and some Supreme Court Justices have said they’re not going to read it before ruling on it.
    To have the Rule of Law the law must be known, known before hand, and knowable. None of these apply to Obamacare. The concept of the “living Constitution” is the opposite of the Rule of Law.

  • John

    Rick is correct and it could (perhaps) be that the justices are starting to become conscious of the unsustainable status quo they have nurtured. That is, a Supreme Court is a very useful institution — in a constitutional republic. But in a nation where the central government has unlimited power and big questions are subject to the whims of direct democracy — who would care what justices think?

    I’d like to think the Supreme Court is seeing the Kafkaesque consequences of unlimited government (in Hosanna-Tabor, in the recent EPA case) and now sees a need to re-establish the Court’s proper role. Wishful thinking, I know. But there is so much st stake.

  • http://frmartinfox.blogspot.com Fr Martin Fox


    My approach would be similar. Generally I’m for cleansing the Augean Stables, and my impulse would be to strike down lots of stuff.

    But I can see the reasoning that leads some to uphold some precedents, even if they were wrongly decided, because they’ve become part of our law. A non-textual example: the argument that military resolution of the War of Secession resolved some constitutional questions that were open as of 1861. No, we shouldn’t resolve constitutional questions that way, but we did–and it’s not a good idea to try to undo it. I suppose that might be somewhat how Justice Scalia justifies some of his votes.

  • http://Comcast Reggie3

    I believe that the “Mandate” will be struck down.As for the rest of the crud,it cannot survive long without the mandate.Our so-called “Representives” are supposed to listen to their “constituents”.Yet over 65% of Americans were against this totally illegal piece of legislation.Yet the Communist speaker,Nancy Pelosi,screamed “Pass it now!We can understand it later”.Is THAT any way to “Represent the PEOPLE?”Folks bashed GWB throughout his second term.Yet this recession began in 2007,when the Libs took control of the Congress.Folks accused Bush of spending to much.Obama has,in the last three years,spent 10 times as much.Obama pushed through this illegal piece of legislation,wasting his first two years as POTUS,while the economy crashed and burned.The Mandate must go.

  • http://Comcast Reggie3

    PS:Do YOU want the Government making all of your life decisions for you?Ask yourself this.As Reagan once said,”Am I better off NOW than I was 4 years ago?”