These days the Supreme Court is nothing if not predictable. After two days of oral arguments on the Affordable Care Act, President Obama's signature legislative accomplishment, there have been few surprises.
On the first day of hearings, the justices considered whether the lawsuits challenging the individual mandate were barred by the Anti-Injunction Act, a longstanding federal law that prohibits anyone from challenging a tax until after the tax has been collected. In the ACA case, the individual mandate is arguably a tax because someone who does not have insurance coverage will pay a tax penalty to the IRS. If the mandate is a tax, the challenges to that part of the law will be thrown out of court. Not until after 2014, when the mandate goes into effect and someone fails to pay it, would a court be able to entertain a challenge to the mandate.
The problem with that approach is that the justices on today's Court have shown little inclination to avoid flexing their muscles on important political issues of the day. There are few stronger trends in the Supreme Court than judicial assertiveness. A Court that could decide a disputed presidential election in Bush v. Gore; unleash Citizens United on our electoral process; and repeatedly wade into presidential war powers can be expected to have no hesitancy deciding the fate of the Affordable Care Act. So when the justices breezily ignored the plain language of the Anti-Injunction Act on Monday, it was predictable. The Court wants to decide all of the major issues in American politics, including this.
On the second day of hearings, the Court looked at the individual mandate, with the four liberal justices defending the law and the five conservatives attacking it. In the run up to this week's hearings, a poll of Court-watchers found that 85% thought the Court would uphold the individual mandate. One can only wonder which Supreme Court these pundits watch. Apparently, many of those polled believed that the votes of Justice Scalia and Chief Justice Roberts were in play. After all, Scalia voted to uphold the applicability of the federal drug laws to homegrown marijuana intended for personal consumption and Roberts's vote would be influenced by his often-noted concern for the institutional legitimacy of the Court.
Scalia's vote in the marijuana case, however, is easily explained. He's a law and order conservative and upholding the federal drug laws was consistent with his well-established pattern of favoring politically conservative outcomes. His aggressive questioning of the government in the health care case showed that he is likely to stick with the conservatives again. The same can be said for Roberts, who for seven years now has been confounding the expectations of those who believed he'd really push for unanimous, narrow rulings that avoided constitutional questions, as he promised in his confirmation hearings. His voting record is strongly conservative and his desire to protect the institutional legitimacy of the Court is remarkable mainly for its lack of manifestation in any case of significance.
As usual with the closely divided Court, the deciding vote belongs to Kennedy. His skepticism towards the government's argument is also not a surprise. He's proven to be the Justice most likely to side with the individual against the government, regardless of the politics. That's why he pleases liberals on gay rights and pleases conservatives on affirmative action. Although the federal government imposes other mandates on individuals -- including mandates to serve on juries, register for the selective service, file tax returns -- opponents of Obama's health care law have been successful in portraying the mandate as a dire threat to individual liberty. Given that framing, Justice Kennedy's apparent hostility to the mandate is hardly shocking.
So if the Court strikes down the individual mandate in a 5-4 decision with Kennedy siding with the conservatives, be angry or be joyous depending on your personal political loyalties. But don't be surprised.