It is both customary and folly for Supreme Court watchers to predict outcomes of Supreme Court cases based on oral argument. So let me engage in the customary folly.
The argument could hardly have gone better for the opponents of the Affordable Care Act. Paul Clement, the lawyer for the 26 states challenging the Act, was masterful, offering the best oral advocacy at the Court in decades. Solicitor General Donald Verrilli fought gamely, but was over-matched and seemingly under-prepared. From the start of Tuesday's key argument when he flubbed his opening and grasped for a glass of water, until Wednesday afternoon when he could not articulate a single hypothetical example of when federal government spending conditions would be coercive on states, Verrilli left those of us who believe in the constitutionality of the ACA with a pit in our stomachs. I kept shouting better answers at my audio player, and I am sure I am not the only one with such a response.
So should we abandon hope?
Members of this Court often make their views known by the tone of their questions. After listening to the arguments, and using the substance and tone of the questions as a guide, there are only two votes in play on the two main constitutional questions: Chief Justice Roberts and Justice Anthony Kennedy.
The four Democratic-appointed Justices (Ginsburg, Breyer, Sotomayor and Kagan) are safe votes on both the individual mandate and on the Medicaid extension. On the other side, Scalia, Thomas, and Alito are safe votes to strike down the individual mandate as beyond the commerce and taxing powers. Moreover, it sounded to me that those three are even willing to strike down the Medicaid extension as beyond the government's spending powers. (Even though Thomas did not ask questions, as is typical for him, his prior opinions leave no doubt as to his vote.)
Both Kennedy and Roberts, however, asked pointed questions to both sides, on both constitutional issues. In fact, at several points Chief Justice Roberts did a better job of articulating the government's position than Verrilli.
Nevertheless, I would put the odds of Roberts holding in favor of the government on the individual mandate at probably 1 in 3, and on the spending clause at 1 in 2. Kennedy is tougher to guess, but probably no better than 1 in 3 on either question.
What does that say about the outcome? Remember for the opponents to win on either question they must get BOTH Kennedy and Roberts. But for Obama to win a total victory he has to win BOTH questions.
So play out the probabilities. (Again, I recognize this is folly. But humor me.) For Obama to win the individual mandate question, he has a 1/3 chance of getting Roberts and 1/3 chance of getting Kennedy. So that means he will get one of them -- and win -- about 56 percent of the time. (ACA opponents get Roberts 66 percent of the time; in 66 percent of those instances they also get Kennedy. They need both to happen. That means they win only 44 percent of the time.)
On the spending power, the odds are even better for Obama. Opponents get Roberts 50 percent of the time; they get Kennedy 66 percent of the time. They get both, then, only 33 percent of the time. In other words, Obama wins the spending clause question 66 percent of the time.
Not bad odds, considering how poorly the week went for the president.
But wait. For Obama to claim a complete victory, he must win both questions. If he wins the commerce clause question 56 percent of the time and the spending clause question 66 percent of the time, he'll win both about 37 percent of the time.
So don't bet the house.
Follow Kent Greenfield on Twitter: www.twitter.com/kentgreenfield1
If you told me I had a 37% chance of winning the lottery on Tuesday, I'd buy a ticket.
Health Care is about sickness and medicine. Broccoli or other vegetables is no way to replace a medicine. The argument to take broccoli to compare medicine in health care is so much far apart. Scalia takes Broccoli to replace medicine. His argument is something NEW, outrageous. Americans had been mandated to buy and to wear HELMET during bikes riding. Or, if Americans put Broccoli on their heads to save life in an accidence. It is ridiculously funny and stupid. Conservative members in the supreme court are forgetful or SEE NOTHING how American Health care Cost running away and hijacking by health care industry. The buying power needs to be organized to control cost. Any justice is not qualified and should not be sitting in the court if disagreed of that. Another GOP argument is to block that in order to stop such term it will be applied the next time. It sounds like the horse one riding will not be stopped to go where one does not want it to go. May be that is the hypothetical concept in GOP desire for a SO-CALLED SMALL GOVERNMENT as some GOP NUTSHELLS said "President is the person, may be more accurate to say a tool, for being able to hold a pen to sign laws that passed as GOP desire. How much stupidity can this nut go and what damages will bring to American society ? Whole bunch nonsenses. They must be stopped.
Issues with health insurance cost:
1. Adverse selection – The basis in why pre-existing conditions caused a denial of insurance. All participants must pay in at least one full year before any claim can be made to avoid someone buying insurance a few months prior to a large claim. http://en.wikipedia.org/wiki/Adverse_selection
2. Large pool of participants to spread the risk out. Permit the public option even though the lobbyists who back the health care industry will fight it as it cuts profits by millions of the billions they take in each year. Medicare and Military are examples of public option where the cost is about 50% of the cost the general public pays for health care insurance.
Increase those insured so the insurance risk is spread out:
In lieu of mandating coverage that may be struck down by the Supreme Court provide a tax deduction. Tax deduction for mortgage interest has not been challenged in court. Allow business and individuals to deduct health insurance payments on tax similar to mortgage interest and charities. This supports the Health Industry similar to how the banking industry is helped with the interest tax deduction but no one is mandated to purchase a home.
Do not forget not one single republican voted to get your son or daughter who has diabetes or cancer health insurance.Something you should remember in November if their court does the same to your kids.Should the court nullify the mandate or the whole law we will demand that the government bans private insurers from the health care industry and enroll every American in Medicare of which the fees can be paid like a payroll tax.If we are going to start over we have to get rid of the cancer that is the private for profit health insurance companies.
History will j
At the very least, the blue states can follow Vermont's lead and head in that direction.
Here's one reform. Allow Medicare to bargain down pharmaceutical prices like any other bulk purchaser in the open market. Conservatives specifically forbid this in Medicare Part D as a reward to their big pharma campaign contributors.
So the only two justices really considering the actual constitutionality of the law instead of just voting their party line were appointed by republicans.