Las Vegas hasn't posted odds on whether the Supreme Court will reject health care reform. But the American Bar Association (PDF) has done the next best thing. As part of a special publication devoted to the case, the ABA surveyed a group of veteran observers and asked them to predict the outcome. The results? Eighty-five percent predicted that the court will uphold the law.
The ABA won't say how it picked the experts; it promised anonymity to guarantee candor. So make of the results what you will. But those experts seem to be part of a broader consensus. In conversations over the last year, the legal experts I know have also predicted that the court would uphold the law: Most seem think the odds are about two to one, or something close to it. Intrade seems to agree.
But more interesting than the top-line numbers from the survey are the predictions of how individual justices will vote. The experts ABA surveyed were unanimous in predicting that the four liberal justices (Stephen Breyer, Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg) would vote to uphold and that Clarence Thomas would vote to strike it down. Fifty-three percent said Anthony Kennedy would join the liberals, but a higher proportion, 69 percent, thought Chief Justice John Roberts would join the majority. Majorities of about 60 percent predicted that the other two conservatives, Samuel Alito and Antonin Scalia, would determine the law is unconstitutional.
Why would experts think Roberts more likely to uphold than Kennedy? I really have no idea, although I've pinged a few law professors to see if they have theories. (Readers with legal knowledge should feel free to speculate in the comments.) The best I can offer is this: Given the near certainty that all four liberal judges will vote to uphold, a vote to strike down the law, even in part, would have to be five-to-four and it would have to break down along party lines. Maybe they think Roberts doesn't want to go there, at least for a cause -- limiting the commerce and "necessary and proper" powers -- that's not a particular passion of his. (One informed legal observer suggested to me that Roberts is far more interested in rolling back the Voting Rights Act, as he's already started to do.)
A more carefully reasoned explanation for why the law seems likely (although far from certain) to survive comes from Richard Primus, a former Ginsburg clerk who is now a professor of law at the University of Michigan. And it's an interesting explanation, if you're following this case, because the source of Primus' relative confidence is the very case that gives so many of the law's defenders anxiety: United States v. Lopez.
The subject of Lopez was a federal law banning gun possession near schools. The government cited its right to regulate interstate commerce as justification for the law. A five-to-four majority rejected that argument, saying that states could handle the matter on their own. In so doing, the majority, led by Chief Justice William Rehnquist, established a limit on the commerce clause power -- something the court had not done since the New Deal. Critics of the Affordable Care Act hope (and advocates of the law fear) that the court's willingness to limit the government's interstate commerce power in that cause mean it might do the same in this one.
Writing in the Michigan Law Review, Primus takes a different view. He wonders whether Lopez might end up saving the Affordable Care Act. He starts by calling the Affordable Care Act an "easy case" on the merits: "Under existing doctrine, the provision is valid as can be." Still, he acknowledges, the justices believe in the idea that the federal government has only the powers enumerated in the Constitution. They would be hesitant to write a decision that appeared to allow for the possibility of boundless federal power.
That's where Lopez might come in handy. To simplify Primus' argument a bit, he thinks Lopez could put the justices' minds at ease. Having already established that the power to regulate interstate commerce has limits, Primus suggests, they might not feel compelled to do so again. What's more, the Lopez decision led to subsequent decisions -- most important among them, Gonzales v. Raich -- in which the court specified with more detail the limits of the commerce power. And the health care mandate falls clearly within them.
In other words, Lopez signaled a willingness to roll ball federal regulatory economic authority, something that hadn't existed since the New Deal. But, in this particular case, Lopez might make the justices more comfortable upholding the law.
I'm well into the weeds of legal theory now, I realize, and a bit out of my depth. But if you care about this stuff, read the Primus article. And maybe keep an eye on Intrade.
Jonathan Cohn is a senior editor at The New Republic. The opinions expressed in this commentary are solely those of the author.