Why The Health Care Decision May Be Less Dramatic Than Expected

But say a wonky compromise isn’t reached—say the Court takes a more ideological stand by throwing out the law entirely or nixing the mandate in a way that opens the door to a new interpretation of the commerce clauses moving forward. Who will be in the right—the liberals who suddenly will claim a radical judicial overreach, or the conservatives who will be proud to say that equilibrium has been restored?

Given the history and theory, I would be deeply suspicious of a dramatic striking of the whole law or the individual mandate. The mandate, originally a GOP idea and a central component of the Massachusetts health care law signed by party nominee Mitt Romney, was included in part because few legal scholars saw any chance of it being invalidated within the context of the commerce clause, or any other clause for that matter. But in the months and years since the law was passed in March 2010, a steady drumbeat of conservative activism has shifted the popular consensus on the mandate’s constitutionality.

I hate to defer entirely to the ‘legal experts’, but they are individuals who handle these kinds of arguments professionally. The same experts who originally saw the mandate as constitutionally golden now say its more than likely the Court will strike it or the whole law down, though they themselves don’t see its constitutionality much differently than they did before. There is something unsavory about that– it means a rebuke of the mandate would show that primary influence for the decision came from outside law as commonly understood and outside the normal kind of public opinion considered. As we saw above, opinion en masse is largely indifferent to the pure positions when polled on them.

But even if you dismiss expert opinion entirely, the idea of a dramatic decision really is absurd on its own merits. It is conceivable, now, that a policy that was once the conservative answer to liberal health care reform efforts, that was once signed into law by the Republican nominee and was seen as a major compromise from more ideological liberal solutions will be struck down by justices who are making a name for themselves as conservative activists of the highest degree. Justice Clarence Thomas‘s wife has meaningful and questionable professional relationships with major players in the healthcare industry, and he and Justice Antonin Scalia were criticized last year for dining at a black-tie event with health care law challengers . From a legal angle,  from Bush v. Gore to Citizens United, the court has recently proven itself willing to take dramatic steps that betray the modesty and restraint that they promise us in their confirmation hearings.

Would the loss of the individual mandate be part of a larger trend of conservative takeover, even a coup, as James Fallows asks in The Atlantic? That might be hyperbolic, but his point remains. The Court’s conservative wing won out in the political struggle of 2000, and the candidate benefited by their decision went on to appoint two additional justices who promised time and again in three-ring circus of their confirmation hearings that they would be objective ‘umpires’. They have been anything but, running one of the most conservative courts in recent history on a steady diet of 5-4 opinions. There has been a tremendous shift.

This is the Roberts Court’s chance to correct their increasingly polarized image with the American public by issuing a ruling here that fits within precedent, their own undeniable biases and the complex pulse of the public. A nuanced, anti-soundbite, anti-talking points opinion would be the correct one. But given the state of government these days, who knows what we’ll get.

This is an opinion piece. The views expressed in this article are those of just the author.