I was somewhat surprised, prior to this week's oral arguments, how optimistic some of my favorite legal and political observers were about the outcome of the Affordable Care Act case being argued at the Supreme Court this week. The court, predicted Dahlia Lithwick, "will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market." Linda Greenhouse foresees the Supreme Court upholding the law "by a wide margin." Kevin Drum also sees a 7-2 vote in favor of the ACA. Jon Chait argues that the law is clear, and acknowledges a chance the Supreme Court would simply ignore the law in the way they did in Bush v. Gore. I view things differently.
I think there is a very real chance that the Court would strike down the law, and while I personally find these arguments exceedingly unpersuasive they're not "wrong" in the sense that they have no basis in the text of the Constitution or represent arguments no reasonable person could believe. I wrote a few months ago that the case would essentially come down to Kennedy's vote, and "Kennedy is a moderate enough that I can't predict his vote with any confidence." That's still what I think; it will be a close case, and there are reasons to believe that Kennedy would vote either way. After yesterday's oral arguments, however, it seems likely that any previous optimism on the part of progressives will have vanished. Ezra Klein and Jeffrey Toobin are far from alone in seeing Kennedy's hostile questioning of the Solicitor General as signaling that the law will be struck down. Lithwick, at least, has repudiated her earlier prediction. Why was the earlier optimism arguably misplaced in light of the oral arguments?
First of all, I think (particularly among political writers) there's an important misunderstanding. Even if we concede that the ACA is unquestionably constitutional under the Court's precedents—something that I don't think is strictly accurate, although they strongly point in that direction—it's important to remember that the Supreme Court is not bound by its own precedents. Lower courts are, and for that reason some of the District Court opinions striking down the ACA were embarrassingly feeble. But the Supreme Court does not violate any legal practice by limiting or overruling its own precedents. The law allows enough discretion for the Court to use its powers unwisely in this case, and it might. It is true that even if it is legally permitted to do so, the Supreme Court is very reluctant to overrule major precedents. Even after four decades of Republican-dominated Supreme Courts, the major precedents of the Warren and early Burger Courts remain good law. There is no question in my mind that if the argument being made against the ACA required the Supreme Court to overrule Wickard v. Filburn and return the country to a pre-New Deal conception of the Commerce Clause, it would not do so. But the genius of the argument concocted by the ACA's opponents is that it does not require the Court to explicitly overrule any existing precedent. I think that the distinction between "activity" and "inactivity" is utterly nonsensical as applied to the healthcare market, and Steven Breyer did a good job of explaining why at yesterday's oral argument. But it provides a way for the Court to strike down this particular bill without threatening the fundamental structure of the New Deal.
Anthony Kennedy may well see this as, like U.S. v. Lopez as an exception that keeps the federal government within some limits without threatening long-established and cherished federal programs. And it's worth noting that this is precisely what the Rehnquist and Roberts Court has frequently done. It's true that the Warren and liberal Burger Court landmarks mostly remain formally intact, but this also misleading. Brown v. Board of Education after Miliken v. Bradley and Parents Involved is essentially a different case than the Brown being applied by the Warren Court in the mid-1960s. Miranda v. Arizona has not been overruled, but it has been substantially pared back, as of course has Roe v. Wade. A relatively narrow opinion striking down the ACA could be very much within this tradition.
In arguing that it would not be surprising or lawless for the Supreme Court to strike down the ACA, I don't mean to in any way imply that this would be a good outcome. For the Supreme Court to strike down the centerpiece legislation of an incumbent on constitutional grounds that are (to be charitable) highly contestable would be unusual for very good reason. In my view it would be outrageous, and I don't think that such an opinion would be capable of principled application going forward—however the Supreme Court tries to cabin the newly-minted principle it would threaten many other aspects of the modern state. But there was always a very real chance that it would happen. Elections have consequences, and alas in this case the results of the 2004 election may control the fate of the ACA even after these results were repudiated in 2008.