Wednesday, November 2, 2011

Supreme Court and Healthcare Reform

"Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate."
Alexis de Tocqueville, Democracy in America (1835)

The Supreme Court of the United States of America

It is very likely the Supreme Court will decide to eventually hear cases challenging to the new federal health reform law at its Conference on Thursday, November 10. As Jonathan Cohn has said there is no remaining chance that the Supreme Court will pass on the issue altogether. I have included brief biographies and their likely votes when the Court ultimately hears the case(s) below. One of the best resources around on this subject is the SCOTUS Blog healthcare section. I will be following the progress of these important cases and hope to provide a laypersons perspective, while also focusing on some specific aspects of the law pertaining to technology.

One of the first issues to dispense with is the idea that there may be any recusal of any of the Justices on these cases. This will not happen and all of the Justices will participate. While there is clamoring for both Justice Kagan to recuse herself, and Justice Thomas to recuse himself, I would be willing to bet that neither will. Since the justices themselves are their own final arbiters on this decision, they can do what they want and they will hear the case.

The next big question is the final outcome: It will be 5-4 or 4-5. It is still too close to call, but as we get closer to their deliberations I will make a prediction. For now though, I think it is safe to say that Kennedy will (as usual) be the swing vote. As Ilya Somin said on a "Constitutionality of the Individual Mandate" NEJM Perspective Roundtable:
I think the key swing voters then are Chief Justice Roberts and Justice Kennedy, and particularly in the case of Kennedy, it’s very difficult to predict where he’ll come down. I would note that in recent opinions, including most recently in Bond vs. the United States, he has emphasized the importance of structural limits on federal power. And he has emphasized the ways in which those limits promote individual liberty.
I disagree that Roberts is likely to uphold the law, but agree that Kennedy will be the deciding vote. Justices Roberts, Scalia, Thomas and Alito will vote to overturn the individual mandate. Justices Ginsberg, Breyer, Sotomayor, and Kagan will vote to uphold the law. So the real question will be how is Kennedy going to vote...

John Roberts, Jr. was born January 27, 1955 and is the 17th and current Chief Justice of the United States. He has served since 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist. He has been described as having a conservative judicial philosophy in his jurisprudence. He is likely to find the individual mandate of health reform unconstitutional, but it isn't clear if he would throw out the entire law.

Justice Antonin Scalia was born March 11, 1936. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice. Appointed to the Court by President Ronald Reagan and has served since Sept. 26, 1986. Scalia has been described as the intellectual anchor of the Court's conservative wing. He is almost certain to find the individual mandate unconstitutional and would likely also overturn the entire law.

Justice Clarence Thomas was born June 23, 1948. He was appointed by President George H.W. Bush and has served since Oct. 23, 1991. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court. Thomas is a staunch conservative and has rarely asked any questions during arguments before the court. There is very little doubt that Thomas would find the health reform legislation unconstitutional.

Justice Samuel Alito, Jr. was born on April 1, 1950. He was nominated by President George W. Bush and has served on the court since January 31, 2006. Alito votes with the conservative side of the court. Alito's position will probably be very close to Chief Justice Roberts. I do not think he will find the individual mandate constitutional.

Justice Anthony Kennedy was born July 23, 1936. He was appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions. Conservatives have felt betrayed by some of his decisions, but other observers say he reaches conservative results more often than not. Kennedy would be the swing vote on health reform.

Justice Ruth Bader Ginsburg was born March 15, 1933. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice (after Sandra Day O'Connor) and the first Jewish female justice. She is viewed as belonging to the liberal wing of the Court. She will very likely support the legislation.

Justice Stephen Breyer was born August 15, 1938. He was appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is associated with the more liberal side of the Court. Breyer would likely support the individual mandate and certainly will not support overturning the entire law.

Justice Sonia Sotomayor was born on June 25, 1954. She was nominated by President Barack Obama to replace retired Justice David Souter and has served on the court since August 8, 2009. Sotomayor is the Court's 111th justice, its first Hispanic justice, and its third female justice. Sotomayor will vote in favor of health reform.

Justice Elena Kagan was born April 28, 1960. She was nominated by President Barack Obama to replace Justice John Paul Stevens and has been serving since August 7, 2010. Kagan is the Court's 112th justice and fourth female justice. Kagan will support the health reform legislation.


  1. If intellectual consistency were a consideration, then Roberts, Thomas, and Scalia could be expected to support the Heritage Foundation's brainchild, the individual mandate. With this court, however, it's difficult to discern any motivating interests other than pure partisanship and fealty to corporate influence. Watching this Affordable Health Care Act work its way to the Supreme Court is like watching a train wreck unfold in slow motion. The damage will be incalculable.

  2. I take it, George, you are in favor of the Act? :-)

    I'm curious why you left Alito off your list...

  3. Thank you for sharing this. I appreciate your descriptions of the SC members and proposed voting direction. Interesting.

  4. At it's worst, we will have a politicized 5-4 (or 4-5). But I'm expecting the court at it's best. Even liberal judges are judges first and foremost. Never in U.S. history has the federal government had the power to force an individual to make a purchase. They have the right to tax us, but not as a penalty for not buying something. It's a bit unfair to judges to assume that liberals (or conservatives)are unable to read and understand the Constitution. It's not ALWAYS political. Don't be surprised if the mandate is struck down unanimously - while the rest of the reform bill is upheld.