Thursday, April 26, 2012

If you were a Supreme Court justice...

Joan Biskupic, on of Reuters' Supreme Court reporters, has a circumspect article about how vain it is to speculate about how the Court will rule on the constitutionality of the Affordable Care Act.

Of course, salted into the nutritious helping of info about the Court's august procedures for guarding confidentiality are two bits of well-sourced speculation, one on each side.  The second set me off on a thought experiment. Here it is:

Tom Goldstein, a Washington lawyer and founder of the website SCOTUSblog, said he briefly thought he was observing a sign when he argued a case before the nine justices on April 16 - their first day back after the late March healthcare hearing. When the justices ascended the bench, Goldstein thought the four liberals seemed in particularly fine moods.

He caught himself thinking - only fleetingly - that their good spirits might have meant a majority had voted to uphold the law. "But," added Goldstein, "it flashed through my mind just as quickly that what I saw meant nothing."
Four justices, one mood. That set me thinking about the degree to which actual legal arguments are likely to have an effect. So then I thought: suppose I were one of the nine -- with my existing political propensities. Before I'd read any of the case pleadings, how open would I be to persuasion by the plaintiffs?

Not very, I must admit (having read the briefs oral arguments on the mandate after the fact). But then I turned it around: suppose a future Republican Congress passed a law to privatize Social Security, in whole or more likely in part, e.g., with a 'mandate' that we all invest in mutual funds of some sort (hopefully including index funds).  Would I be open to arguments in favor of letting the law stand?

I think I would.  I think that privatizing Social Security is a terrible idea -- but Congress created it in the first place, creating new powers for itself in the process, and it's hard for me to see on its face how restructuring the program would raise a constitutional bar (it might, but I think I'd be open to arguments in defense).  More to the point: I think that the constitutional presumption that Congress's powers to regulate commerce should be broadly construed are in accord with intuition, mine anyway, and that the natural inertia in favor of upholding a law passed by Congress is a reasonable counterweight to partisan preference.  I hope that's true for Anthony Kennedy, at least.

On the other hand,  maybe Goldstein's fleeting intuition was father to this guardedly happy thought.

P.S. If you're concerned about the ACA's fate, forget the trivia above and dig into this:
Jonathan Cohn tells the justices: the ACA has catastrophic coverage options
Michael Carvin misrepresented the mandate in oral argument
The ACA offers catastrophic coverage: the AP notices
The bounded, minimalist way to uphold the ACA (Marty Lederman at Balkinization)
Go tell the justices: the ACA has a catastrophic coverage option 

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