Focus on the Court: How Will the Justices Vote?
Last week, Supreme Court Justices heard oral arguments for and against the Patient Protection and Affordable Care Act (ACA), a landmark case of the decade. My colleague Madison covered each day’s arguments in depth, and the way that the media has interpreted those three days will likely be the way that the public wages bets on how the Court will ultimately decide the case (a decision is expected in June). However, oral argument is only a part of the decision-making process in any Supreme Court case. Professor Abbe Gluck of Columbia University Law School, has said that oral arguments tend to matter only about 10 to 15 percent of the time, and interpretation of the Justices’ remarks during the hearings does not give nearly as much insight into their thinking as their previous opinions or relevant case precedents.
So now that oral argument has concluded, let’s take a step back and think critically about how the vote might break down:
It’s widely agreed that the four “liberal” justices, Stephen Breyer, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg, will vote to uphold the ACA. Similarly, it’s quite likely that Justice Clarence Thomas, probably along with Justices Samuel Alito and Antonin Scalia, will vote to overturn the law, stating that some or all of it is unconstitutional. Therefore, the two justices “up for grabs” are Justice Anthony Kennedy and Chief Justice John Roberts.
Kennedy’s vote has been getting most of the attention, so I’d rather take some time to consider how Chief Justice Roberts might vote. Why would Roberts vote to uphold the Affordable Care Act? Some suspect that Roberts is concerned with maintaining the Court’s prestigious reputation as the sole non-political branch of government. Especially after Bush v. Gore and Citizens United have been criticized for being decided for political, rather than constitutional reasons, another 5-4 vote along party lines won’t help the Court’s reputation. Others suspect that he’s not willing to have his reputation as Chief Justice defined by a case about which he’s not particularly passionate (issues surrounding voting rights seem to be of more interest to him than limiting the commerce and “necessary and proper” powers).
While testifying in front of the House Judiciary Committee, former acting Solicitor General Walter Dellinger predicted: “I would wager that Chief Justice Roberts writes the opinion upholding the law. . . . He won’t want to say that the market alternatives are ruled out but it [will be] upheld because of all the reasons we’ve said about the central role it plays in avoiding the displacement of costs onto other citizens.”
Also of note, the American Bar Association has surveyed its experts anonymously to see how they predicted the vote breakdown. Unanimously, they predicted Breyer, Kagan, Sotomayor, and Ginsberg voting to uphold, and Thomas to strike the law down. Sixty percent said that Alito and Scalia would strike the law down, 53 percent said that Kennedy would vote to uphold the law, and 69 percent predicted that Roberts would uphold.
But of course, as Hank Greeley of Stanford University Law School says, “Anybody who is real confident about this shouldn’t be listened to.” We truly won’t know the outcome of this case, and the fate of those in our country who are uninsured and face prohibitive health care costs, until the Supreme Court hands down its decision sometime this summer. Until then, we’ll just have fun speculating.