Will the Supreme Court Overturn Obamacare?

The Supreme Court has reinserted itself in the heart of domestic politics by agreeing to review the Patient Protection and Affordable Care Act (PPACA).  How is the Court likely to rule?  Consider two scenarios.

The first scenario relies on a prominent theory of judicial decision-making called the attitudinal model.  It holds that justices are unconstrained policymakers.  To predict and explain Court actions we simply need to figure out the policy implications of the legislation and justices policy preferences.  The vote takes care of itself from that point.

In our recently published book, The Constrained Court (you should buy it here—think holiday stocking stuffer), we use politicians’ positions on Court cases to “bridge” preference estimates making them comparable across Congress and the Supreme Court (see here for more details). Applying this technique to the PPACA we can estimate probability that each justice would vote to overturn the law if ideology were the only factor.  Based on preferences alone, 5 justices, including the “swing” justice Anthony Kennedy, are predicted to vote to overturn the PPACA—as depicted in the top graph below.  In the graph immediately below it, we calculate the probable vote margin. The most likely scenario is a 5-4 decision overturning the PPACA.  Under this scenario, the Court would be a lock to overturn. Goodbye Obamacare.

But consider a second scenario.  We (and many others) think there is more to justices’ behavior than policy preferences.  Justices have famously bucked their presumed policy preferences on high-profile cases—such as when Rehnquist supported Miranda rights in Dickerson v. United States based on support for precedent and Scalia supported flag-burners (whom he openly admitted he’d like to see in jail) in Texas v. Johnson based on support for First Amendment speech rights. We show in our book that virtually every justice deviates from their policy preferences in favor of one or more of several prominent legal values such as respect for precedent, although the justices differ in how much they value precedent.

In considering the possible role of precedent, what precedent(s) should we take into account?  This is not a simple question.  While United States v. Lopez and United States v. Morrison offer possible precedents, we are persuaded that the Wickard v. Filburn and Gonzales v. Raich are most clearly relevant (as argued, for example, in conservative Judge Laurence Silberman’s DC Circuit decision upholding the law).

Given that precedent established by Wickard and Gonzales is supportive of upholding the law, we then calculated the predicted vote of each justice based not only on their policy preferences but based on their tendency to defer to precedent.   Deference to precedent varies by justice: Kennedy does so much more than Thomas, for example.   More details on the underlying method are here.

Here are the results:

Kennedy’s predicted behavior shifts dramatically, going from a certain vote to overturn the PPACA in the ideology-only model to only a 46% likelihood of voting to overturn when we factor in precedent.  Roberts and Alito also shift, although not so markedly.  In the second graph, the probability of overturning the law is therefore much lower (30%).

As always, predictions are hard, especially about the future (see Berra v. Bohr) and especially when it isn’t clear which precedents apply or which legal doctrines are likely to dominate. Thus, any specific prediction must go beyond the model.

That said, here is ours: 6-3 or 7-2 to uphold the law.

Respect for precedent pushes Kennedy to support the law and Roberts comes along for the ride in order to keep the opinion out of Kennedy’s hands (and possibly writing an opinion that cabins the Commerce Clause more than it is now).  Alito probably goes with Roberts, but seems more up for grabs.  If we are wrong, expect the justices to either downplay precedent and emphasize other legal values (such as federalism) or play up the few precedents that protect state rights.

Policy motivations won’t be irrelevant, but score this one for law.


I think you're probably right about the result, except this whole "comi[ng] along for the ride in order to keep the opinion out of" whoever's hands things is kind of overstated. This is not a new trick. All the Justices and all of their clerks and all 2Ls know about this, as does everyone who has read The Brethren.

It could just as easily fragment the case into sections where there are 5, 6, and 7 votes. I seriously doubt they're going to let Roberts hijack the whole thing, and, as the 6th vote he just doesn't have the leverage to do it. Especially not when you have someone as eager to be in the history books as Anthony Kennedy.

So, I'll say it's 5-4 uphold/Kennedy writing—or an opinion divided into numerous sections with 7-2 on some questions and 5-4 on others, with Kennedy, Roberts, and Bereyer writing important sections separately.

I'll take the under.

I'm cynical enough to believe they'll blow up the bill, because it is Obama's signature legislative accomplishment, and it's an election year, and then, with Congress and the White House safely in GOP hands, the Republicans turn right around and pass the same law, complete with mandate -- mandate-and-subsidize began life as a Heritage Institute creation, after all -- in order to drive captive customers into the arms of an industry that's a major campaign contributor.

And then they run on it in 2014, as their signature legislative accomplishment.

There's always some bullsh*t reason available, if you're an appellate judge, to distinguish a Democratic mandate from a Republican mandate if you look hard enough, and the HIAA pays enough.

I think new makes a good point about the possibility of a plurality, perhaps one that has no clear majority - it could leave us scratching our heads for years to come. At the same time, it's not just Kennedy who has to consider his legacy. Does Roberts want to lead the court to a sound decision on a difficult issue, achieving a 7-2 (or, better, a 9-0) against the odds to uphold the law? (See, e.g., the unanimous decision in Brown v Board). Or will he want one of the most important decisions of his career to make him look ineffective as the leader of "the Roberts Court", or land him in the history books alongside Justices like C.J. Taney (author of Dred Scott). Does he want to create a context in which, through they eye of history, the dissenting justices look like the ones better fit to serve and the ones whose opinions are remembered (e.g., Harlan's dissent in Plessy v Ferguson)?

Also, not that it's stopped them before, adopting the specious "action / inaction" distinction will result in a mind-blowing proliferation of Commerce Clause cases. It's easy to reinvent even historically settled cases like Wickard v Filburn as being about mandating action (you can't grow feed grain - you must by it from others or let your livestock starve) as opposed to inaction.

This decision does make me a little nervous. Since the President's comment in his state of the union address re: freedom of speech and campagin contributions, I worry how much of a revenge factor will ne involved. If there is a good legal argument for ruling it unconstitutional, I fear that Alito, Roberts, Scallia and Thomas will rule against it. As much as I'd like to believe that politics does not play a part in Supreme Court decisions, history informs me otherwise. The most recent ruling by the DC Circuit gives me hope if the Supreme Court gives any weight to it. I think it will be a 5-4 decision to uphold with Kennedy being the swing vote. This one could be really tricky and I hope my fears do not come true.

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