Will health care go to the Supreme Court?
A conservative legal scholar and friend writes in to say that I've been too quick to predict that health-care reform will end up in front of the Supreme Court:
There remains a very good chance that this will not end up before the Supreme Court. While the plaintiffs wisely chose district courts that reside in more conservative parts of the country (the 11th & 4th Circuits) there remains no guarantee that the Circuit Courts will affirm the decisions finding the mandate unconstitutional. To the extent that my sense that these challenges represent an outlier view among even conservative legal thinkers [is correct], then it is less likely that either a three-judge panel of either circuit, or, as would be likely either way, either circuit sitting en banc, would throw out the mandate as two trial courts have done.
I do not believe the Supreme Court would be inclined to take this issue up in 2012 (the likeliest timetable) if no Circuit court had found the mandate (or any other part of the law) to be unconstitutional. So this could still finish up in the Administration's favor before it reaches the Supreme Court, and if it does, I don't think the Supremes would feel compelled to weigh in, given the givens.
Were I a wagering man, I'd wager just a little bit that these lower court decisions will be reversed and the matter will end there.
Further evidence for that view here. I'd take my friend's bet, but not because I think he's wrong as a matter of law. I'd take it because I consider the courts quite -- though not entirely -- politicized. And this is politically too big and too charged of an issue for these guys not to have developed strong opinions on.
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