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Scalia and Ginsburg Drop Hints about Obamacare's Fate at the Supreme Court

June 17, 2012

By Avik Roy

The Supreme Court is set to issue its ruling on the epic Obamacare case, Florida v. HHS, at the end of June. Two of the High Court’s justices, Antonin Scalia and Ruth Bader Ginsburg, dropped hints this weekend as to what the Court might do. Between what they said, and the scuttlebutt I’ve been hearing, we can start to think about what the Court may do—and when.

On Friday, Associate Justice Ruth Bader Ginsburg spoke at the annual Court review of the American Constitution Society, a group "dedicated to…countering the activist conservative legal movement." Ginsburg said that she was quite aware of the controversy surrounding the Obamacare case. "Some have described the controversy as unprecedented and they may be right if they mean the number of press conferences, prayer circles, protests, counter protests, going on outside the court while oral argument was under way inside."

So how will the Court rule? "At the Supreme Court, those who know don’t talk," said Ginsburg. "And those who talk don’t know." Well, that won’t stop me.

Is Ginsburg on the losing side?

In her ACS remarks, Ginsburg suggested that she might be on the dissenting side of the case. "I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change," said Ginsburg, in the context of a 2007 pay discrimination case.

Most tellingly, she touched upon the key question that I believe the Court is still working through: what to do with the law if the individual mandate is indeed found to be unconstitutional.

My sources (which I freely admit to be third-hand) suggest that Kennedy will side with the conservatives and strike down the Affordable Care Act’s requirement that nearly every American must buy health insurance. The key question is: how much of the rest of the law should be struck down along with it?

Ginsburg wittily put it this way: "If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?"

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the "strike three" scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

Scalia says Wickard v. Filburn was wrongly decided

If you’ve been following my writing on the Obamacare legal challenges, you know that a pet peeve of mine is the 1942 Supreme Court case Wickard v. Filburn, in which the Court decided that Roscoe Filburn couldn’t grow wheat on his own land to feed his own animals, because this somehow constituted interstate commerce. Wickard remains the core justification for 70 years of federal intrusion into the activities of individuals and localities.

Surprisingly, Antonin Scalia writes in a new book, Reading Law: The Interpretation of Legal Texts, that he agrees. Wickard, he writes, "expanded the Commerce Clause beyond all reason" by opining that "a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause."

It’s surprising because Scalia’s concurrence in Gonzales v. Raich, the most recent major Commerce Clause case, is justly seen as an endorsement of Wickard. "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce," he wrote in that 2005 case.

Scalia acknowledges this contradiction in the preface to his new book, as reviewed by Adam Liptak of the New York Times. Scalia writes that he "knows that there are some, and fears that there be many, opinions that he has joined or written over the past 30 years that contradict what is written here." While some of those contradictions can be justified by Scalia’s desire to adhere to prior Court precedent, even where distasteful, in some cases it’s "because wisdom has come late."

The bottom line is that if Scalia thinks Wickard was wrongly decided, he’s almost certain to vote to overturn the mandate. This isn’t a surprise based on his commentary at oral argument, but it may shed light into the thinking of Justices Alito and Roberts, who are thought to share Scalia’s precedent-oriented approach to dealing with the Commerce Clause.

June 25 remains the most likely date for the opinon

Brad Joondeph of the ACA Litigation Blog has published a comprehensive breakdown of when the Supreme Court may issue its opinion in the case. "Setting aside the ACA cases," he notes, "the Court essentially has twelve other decisions to hand down." In addition, "in recent Terms, the Court has handed down opinions on Wednesdays or Thursdays of both of the last two weeks of the Term, in addition to the regularly scheduled Mondays. And the Court has already announced that it will issue one or more opinions next Thursday, June 21." Worth also noting, he writes, "the Court almost never issues more than four or five opinions on the same day."

Hence, if the court issues four or five opinions each on Monday, June 18 and Thursday, June 21, that would leave between two and four opinions for the last scheduled day for reading opinions: Monday, June 25.

"If the Court has handed down virtually all of the twelve [non-Obamacare] opinions…by next Thursday, then June 25 would likely be the last day of the term," Joondeph says. "But if the Court only hands down, say, five or six opinions next week, it will need at least two days the following week to hand down what remains." That means that the Court will probably reserve either June 27 or June 28 to hand down the last set of rulings.

The Apothecary’s wall-to-wall SCOTUS coverage

Finally, a programming note. The Apothecary will feature wall-to-wall coverage of the Supreme Court’s Obamacare decision, whenever it comes out. Check our home page that day for the latest posts. My Twitter feed will be the best place to find up-to-the-minute info. The Manhattan Institute has put together a hub for the latest work from me and several of my MI colleagues, including Paul Howard, Jim Copland, and Russ Sykes. I may also set up a live blog over at National Review to discuss the ruling, as I did for oral arguments. (You can review our discussion of the severability question here.)

Stay tuned.

Original Source: http://www.forbes.com/sites/aroy/2012/06/17/scalia-and-ginsburg-drop-hints-about-obamacares-fate-at-the-supreme-court/

 

 
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