Many commentators seem pretty sure the Supreme Court will rule against the administration's health reform this week. I don't see why. Then again, I also couldn't understand the earlier consensus that the Court was certain to uphold the law. Two years ago, I thought it was finely balanced and could go either way. I still think that.
Because of the individual mandate, the law is constitutionally novel. And the mandate is not the only aspect of the measure that tests precedent. See Stuart Taylor's column from 2010, which argued that the Medicaid provisions are even more vulnerable to constitutional challenge. It was always possible the Court's conservatives would feel emboldened to strike the law down. Whether they would dare would partly depend on how popular the law was when the decision came around.
The law isn't popular -- because, inexplicably, the administration has made no effort to sell it. In any event, the thing was never clear-cut. It was never unthinkable that the Court would block the law, and the settled unpopularity of the measure has made that result a little more plausible with each passing month.
Yet I never thought it likely that the Court would strike it down. Overturning an enormously important and duly enacted law on a legal technicality -- which is what objections to the individual mandate amount to -- would be a very audacious move. Depending on how the votes split, it would make further mockery of the Court's claim to be above politics. Again, to be sure, the law's unpopularity is important, because the Court's conservatives would expect to have most of the public on their side. It's still a daring, confrontational step, and one that a wise Court, mindful of its long-term standing with the public, would hesitate to take.