Our early prediction on the Supreme Court health care decision has become conventional wisdom. But we can see things going a slightly different way.
Back when people were saying -- was it really only a few weeks ago? -- that the Affordable Care Act was a shoo-in to pass Supreme Court muster, we thought the individual mandate (otherwise known as the "heart" of the ACA) would be struck down, leaving the Act to wither.
We felt this way for two reasons: 1.) The Court leans conservative, and though this doesn't affect every decision it makes, it tends to affect the big ones; and 2.) The Court is strongly influenced by the doctrine of Originalism, and the Act's classification of health insurance as interstate commerce is not something the Justices are likely to relate to the vision of the Founders.
Anyway, recent events have turned other commentators as negative as we have been -- like CNN's Jeffrey Toobin ("I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate"). Others imply that it's all going down, every last bit of it.
But might Toobin and we be wrong? The best counter-argument we've seen comes from legal analyst Daniel Fisher at Forbes, who thinks the law will survive, thanks to votes by Justice Kennedy and Chief Justice Roberts.
Fisher perceives from Kennedy's questioning that the Justice "agrees with the government’s central argument, which is that the healthcare market is so universal that even people who think they are not participating in it are actually affecting the cost of care and how it is paid for."
As for the Chief, Fisher says that during Solicitor General Donald Verrilli's defense of the mandate (generally considered disastrous by the press), Roberts appeared convinced after "Verrilli made a reasonable explanation: Healthcare is unique in that its costs are unpredictable and likely to exceed what an individual can pay."
Fisher adds some inside baseball about how opinions get assigned and how that affects decisions, but his main point is that these Justices are actually buying the argument that health care is fundamentally different from other areas of American life, and that it should be allowed more Constitutional latitude than, say, broccoli sales.
We're not totally convinced, but Fisher's closing intrigues us:
But I’m guessing when the justices sit down and contemplate the enormity of striking down all or part of a law of this magnitude, especially months before what will be a national referendum on same, at least a few of them will blink. It only takes one.
Hmm... A conservative court contemplates striking down an unpopular Obama law -- thus removing the President's biggest political liability on the eve of a Presidential election -- and decides it's not worth it... Call us cynical, but that sounds believable.