We are 216 days away from Thursday, June 28, 2012, which figures to be the last day of the United States Supreme Court's spring term. That means that we are no more than 216 days away from knowing what the justices think about the Patient Protection and Affordable Care Act of 2010. To give you a sense of where we are in the process, it has been 601 days since President Barack Obama signed into law the federal health care measure on March 23, 2010. We are, at last, closer to the end than to the beginning.
Millions of words of commentary and analysis already have been written and read about the controversial new law. And over the next 216 days millions more will be offered up by lawyers, journalists, and politicians. Obsess at your own risk. For example, Florida Attorney General Pam Bondi may want you to believe that the "individual mandate" contained in the new law poses an "unprecedented threat... to the liberty of Americans simply because they live in this country." But remember you are free to exercise a little bit of that liberty to tell her she's nuts.
For today, my contribution to the debate will combine two of my favorite pastimes -- the law and horse racing. Now that we know the justices are going to hear the Affordable Care Act cases, now that we know that by March at the latest there will be the most politically-charged oral argument since Bush v. Gore in December 2000, now that we know that John Roberts' most important moment as Chief Justice is at hand, it's time to lay some odds on what is, and what is not, likely to happen between now and next June 28.
Here they are (for the uninitiated among you, these go from "most likely" to "less likely").
Odds: 1-9. If the dispute is resolved on the merits, Justice Anthony Kennedy will be in the majority no matter which way the Court rules. Folks like to mock Justice Kennedy's significance on the court -- one interviewer asked me recently if the fate of the Affordable Care Act would "come down to what Justice Kennedy had for breakfast that morning"-- but the fact is that both supporters and detractors of the Act likely can't win without his vote.
Odds: 2-5: The pragmatic Justice Sonia Sotomayor, who was diagnosed with Type 1 diabetes when she was 8 years old, will vote to uphold the Act.
Odds: 3-5. Justice Clarence Thomas will vote to strike down the Act. On behalf of colleague Justice Antonin Scalia, he signalled as much early this year in a dissent in Alderman v. United States and there is no reason to think that he's softened his stance.
Odds: 4-5. Justice Samuel Alito will vote to strike down the Act. The man who brought us the Citizens United ruling nearly two years ago has proven to be fiercely ideological on the Court. He will conclude that Congress exceeded its authority under the Commerce Clause by requiring individuals to purchase health insurance. Arguably, that's less of a stretch than was the stretch Justice Alito made in Citizens United.
Odds: Even Money. Justice Antonin Scalia will strike down the Act. I go back and forth on this. On the one hand, Justice Scalia signed on to Justice Thomas' dissent in Alderman. On the other hand, I could see the Justice, sly devil that he is, endorsing a ruling that says the current challenges to the new law are not ripe under the Anti-Injunction Act, a tax law that generally requires the tax to be imposed before it can be challenged. Incidentally, the same odds apply to Justice Stephen Breyer -- he either votes to uphold the health care law or he votes to kick the can down the road.
Odds: 2-1. Justice Ruth Bader Ginsburg cites with approval last week's ruling by D.C. Circuit Judge Laurence Silberman, in which the legendary Reagan appointee declared that the Act is constitutional. The justice and the judge worked together on the D.C. Circuit before the former ascended to the High Court in 1993.Chief Justice John Roberts votes with his conservative colleagues to strike down the Act. If he's in the majority, he writes one of the most important rulings of our generation. If he's in the minority, he dissents separately from Justices Scalia and Thomas.
Odds: 4-1. Engendering fury on both sides of the debate, but ensuring healthy Washington legal fees for years to come, the Court simply punts. Instead of ruling on the merits, the justices agree that the legal dispute over the "individual mandate" is not ripe for judicial review under the Anti-Injunction Act. So far, there has been some legal support for this jurisdictional cop-out -- from both conservative and progressive lower court judges.
Odds: 10-1. Chief Justice John Roberts cobbles together a strong majority (6-3 or 7-2) in favor of the Act by including language in the ruling that sharply limits Congressional power to go beyond the "individual mandate." This is the "legacy ruling" that would allow the chief justice to give the Act's supporters what they want but also ease the fears of the Act's detractors who worry that the feds soon will be requiring them to eat broccoli and other foods.
Odds: 1,000-1. Breaking his long silence, Justice Clarence Thomas asks a question during the hours upon hours of oral argument.
Odds: 1,000,000-1. Justices Elena Kagan and Breyer are silent from the bench during all that time.
I'll be back after oral argument with a revised Morning Line. Until then, remember: don't get shut out! Wager now!