海角大神

Predictions are always hazardous when it comes to the economy, the weather, and the Supreme Court. I won鈥檛 get near the first two right now, but I鈥檒l hazard a guess on what the Court is likely to decide today: It will uphold the constitutionality of the Affordable Care Act (Obamacare) by a vote of 6 to 3.听

Three reasons for my confidence:

First, Chief Justice John Roberts is 鈥� or should be 鈥� concerned about the steadily-declining standing of the Court in the public鈥檚 mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizen鈥檚 United, for example, looked to all the world like a political rather than a legal outcome, with all five Republican appointees finding that restrictions on independent corporate expenditures violate the First Amendment, and all four Democratic appointees finding that such restrictions are reasonably necessary to avoid corruption or the appearance of corruption. Or consider the Court鈥檚 notorious decision in Bush v. Gore.听

The Supreme Court can鈥檛 afford to lose public trust. It has no ability to impose its will on the other two branches of government: As Alexander Hamilton once noted, the Court has neither the purse (it can鈥檛 threaten to withhold funding from the other branches) or the sword (it can鈥檛 threaten police or military action). It has only the public鈥檚 trust in the Court鈥檚 own integrity and the logic of its decisions 鈥� both of which the public is now doubting, according to polls. As Chief Justice, Roberts has a particular responsibility to regain the public鈥檚 trust. Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust.听

It doesn鈥檛 matter that a significant portion of the public may not like Obamacare. The issue here is the role and institutional integrity of the Supreme Court, not the popularity of a particular piece of legislation. Indeed, what better way to show the Court鈥檚 impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?

Second, Roberts can draw on a decision by a Republican-appointed and highly-respected conservative jurist, Judge Laurence Silberman, who found Obamacare to be constitutional when the issue came to the U.S. Court of Appeals for the D.C. Circuit. The judge鈥檚 logic was lucid and impeccable 鈥� so much so that Roberts will try to lure Justice Anthony Kennedy with it, to join Roberts and the four liberal justices, so that rather than another 5-4 split (this time on the side of the Democrats), the vote will be 6 to 3.听

Third and finally, Roberts (and Kennedy) can find adequate Supreme Court precedent for the view that the Commerce Clause of the Constitution gives Congress and the President the power to regulate health care 鈥� given that heath-care coverage (or lack of coverage) in one state so obviously affects other states; that the market for health insurance is already national in many respects; and that other national laws governing insurance (Social Security and Medicare, for example) require virtually everyone to pay (in these cases, through mandatory contributions to the Social Security and Medicare trust funds).听

Okay, so I鈥檝e stuck my neck out. We鈥檒l find out tomorrow how far.