Posted on 06/27/2012 6:41:39 PM PDT by SeekAndFind
I’ve abstained up until now from making any predictions on how the Obamacare cases will be decided. But I’m now ready to offer my own reading of the tea leaves. Specifically, the fact that Justice Scalia read his dissent from the bench in the Arizona immigration case leads me to believe that the Court will invalidate the individual mandate by a 5-4 vote.
Let me explain the logical links (and expose their potential weaknesses):
1. As I understood it when I was a law clerk for Justice Scalia twenty years ago, there was an etiquette at the Court that any single justice would read a dissent from the bench no more than once each term. I gather that that etiquette is no longer uniformly acknowledged or accepted—Justice Ginsburg, I believe, has read two or more dissents in some terms. But I believe that the public record would show that Scalia has continued to abide by it.
Maybe I’m wrong on this (in which case the premise of this post collapses). I’m not aware of any reliable record of cases in which justices have read their dissents from the bench, so perhaps Scalia hasn’t continue to abide by the standard. Or, even if he hasn’t departed from it before, perhaps that’s just happenstance.
2. It seems very likely that the Chief Justice is the author of the lead opinion in the Obamacare cases. Among other things, he is the only justice not to have issued a majority opinion from the March and April sittings. Also, he has written only six majority opinions so far this term, when nearly everyone else is at seven or eight. (Justice Thomas has written only six opinions, but he presumably was assigned the remaining ruling from the November. Justice Sotomayor is also at six, but she appears to have lost the majority in one of the October cases.)
3. If the Chief Justice were authoring an opinion upholding the individual mandate and if Scalia were dissenting from that holding, Scalia, as the senior justice in dissent, would have the prerogative to assign himself the lead dissent. I don’t see why he would pass over that option. Further, given what seem to be the relative magnitudes of the Obamacare and Arizona immigration cases, I think it highly likely that Scalia would preserve the Obamacare dissent for the one he would read from the bench. Indeed, the fact that his dissent in the Arizona case was a solo dissent (neither Thomas nor Alito joined it) makes it even less likely as a choice. Therefore, from his reading his dissent in the Arizona case, I infer (tentatively, to be sure) that Scalia is not in dissent in the Obamacare cases.
(Obviously, if Scalia is voting to uphold the individual mandate, my analysis collapses.)
[Update: Oops. It turns out that I’m demonstrably wrong on Scalia’s practice on reading dissents, as he had already read his dissent from the bench in March in a pair of linked cases. Maybe that bolsters my bottom-line prediction by making it even less likely that he would read a dissent for a third time in a single term, but it certainly upsets my line of reasoning.]
If they don’t get rid of all of it; we are doomed.
Pretty much Obamacare will be declared DOA.
What’s the Vegas line on this?
If Obama wins look out ,you’ll never hear the end of it and if he loses ,he’ll just ignore it and congress will do nothing
Here is how bettors and traders at InTrade are betting now:
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The US Supreme Court to rule individual mandate unconstitutional before midnight ET 31 Dec 2012
70.0%
CHANCE
Last prediction was: $7.00 / share
Today’s Change: -$0.50 (-6.7%)
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In-trade has aq 70% probability that the individual mandate will be struck down.
There is a possibility all the justices voted for the individual mandate as an excise tax (if it were rewritten as same) BUT only as an excuse to write all the other stuff out of existence in concurring opinions of severe complexity.
That'd get Ruthy's gizzard fur shur ~
Oh, almost forgot, no matter what the decision Romney is not going to say anything at this time.
SCOTUS is just as corrupt as any group in Washington DC, I think they keep the whole bill so as to advance the New World Order and to reduce the number of people in the USA over the next 20 years.
What is the third case tomorrow? I know Stolen Valor is tomorrow too.
I don't know what to make of it except, I honestly believe Roberts did not want to swear zero in as president.
Whatever ... it is an event that I think will interfere with any and everything the supers do ... especially Roberts.
I agree. The mechanic’s of how the court works, is a much better indicator, than the oral arguements.
This writer seems to know the mechanic’s well.
After Kelo I have lost all faith in the Court. I know it’s make up is different but not by much.
Didn’t he already make a comment today that he thinks they won’t be sleeping very well at the WH tonight because of the imminent ruling tomorrow? Not a very strong statement, but it is something.
No matter what the ruling, I’m tuning in to hear Levin’s take on it. Tonight Levin said if the mandate is struck down, Obama will resort to executive orders to reconstitute what was struck down.
I perdict the Supremes are gonna take a mulligan.
I’m guessing mandate out by 6-3, all out by 5-4.
What is the Intrade success rate at predicting SCOTUS decisions?
The problem in Kelo was CONNECTICUT. The “Takings Clause” in the Fifth Amendment applies to the Federal Government. Most of the states have a comparable clause in their own constitutions. Connecticut does not.
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