Is Chief Justice John G. Roberts Jr. preparing a life preserver for President Obama’s health-care act or a stake?
Monday’s action in the Supreme Court’s penultimate day of decisions may not have done much to shed light on what the justices have concluded about the Affordable Care Act. But it did lead most to believe that Roberts will be writing the majority opinion in the case.
Justice Anthony M. Kennedy penned the court’s opinion in the Arizona immigration case, and it seems unlikely he would be authoring the health-care decision as well. When the chief justice is in the majority, as Roberts was in that case, he decides who will write.
Of course, even the idea that Roberts is writing the majority opinion comes from what might best be called informed speculation, and should be tempered with the only truly immutable rule about the Supreme Court, a doctrine called No One Really Knows.
The split decision in the Arizona case — upholding the most controversial provision with a sort of we’ll-be-watching warning and striking three others — could provide a template for health care. Could justices strike the law’s unpopular individual mandate and still find a way to make the law workable?
“My gut tells me the court will do something that will be a partial victory for both sides of the seemingly unbridgeable chasm between supporters and opponents of Obamacare,” Walter Dellinger, Supreme Court practitioner and former Clinton administration lawyer wrote in Slate.
Dellinger is a supporter of the law and helped the Obama administration strategize about arguments before the court. One way out he sees is for the court to adopt the theory that since individuals must either buy health care insurance or pay a penalty, they are facing a choice, not a mandate.
But it is awfully hard to forecast what the court might do when there is more than enough disagreement about what it has done.
The debate goes on about whether the court’s immigration decision was a win for Arizona or for the Obama administration, which fought the law almost from the moment of passage.
Part of that is because of the splintered decision. All eight of the justices agreed that the part of the Arizona law requiring police to check the immigration status of people they detain and suspect to be in the country illegally does not interfere with federal law.
But Kennedy warned that the issue of whether such detention and checks would lead to racial profiling was not before the court.
“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” he wrote.
Six justices, including Justice Samuel A. Alito Jr., said Arizona could not make it a misdemeanor for failing to carry registration documents, while five justices struck down two other provisions of the law.
Most commentators believe the opinion’s strongly worded endorsement of the federal government’s power in immigration was better news for the Obama administration than for states eager to enact more stringent policies.
And certainly, Monday was a day at the Supreme Court when all of the dissents came from conservatives.
Justice Antonin Scalia was perhaps the most outspoken. His dissent in the immigration case was a broadside against Obama and a “federal government that does not want to enforce the immigration laws as written, and leaves the states’ borders unprotected against immigrants whom those laws would exclude.”
In another case — in which the court found that states may not impose mandatory life sentences without parole for juvenile killers — it was Alito who was moved for the first time in his career on the court to object from the bench.
He dressed down the logic of the opinion and its endorsement of what he called an elitist attitude that the states could not make such decisions. The opinion’s author, Justice Elena Kagan, sat quietly next to him.
Kagan, the court’s newest member, was selected to write the opinion by Kennedy, the senior justice in the majority. He had written the court’s previous opinions that said courts must treat juveniles differently from adults when handing out severe penalties.
The decision to forbid states to make life without parole mandatory but leave it as an option for judges in special cases was forecast during oral arguments.
Was the outcome of the health care case likewise contained somewhere in the more than six hours of oral arguments? That won’t be known until Thursday.