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Posted at 12:26 PM ET, 02/ 2/2011

Will health care go to the Supreme Court?

By Ezra Klein

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.

By Ezra Klein  | February 2, 2011; 12:26 PM ET
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also at NYRB, by David Cole

Posted by: bdballard | February 2, 2011 12:41 PM | Report abuse

Don't even kid yourselves. This one's going all the way, and it'll take a lot of tap-dancing to write a decision that overturns the Florida decision.

Posted by: whoisjohngaltcom | February 2, 2011 12:54 PM | Report abuse

You only need 4 votes on SCOTUS for certiorari. That means that the conservatives justices can take up the case even if Anthony Kennedy would initially rather not.

Posted by: chrisg2 | February 2, 2011 1:02 PM | Report abuse

whoisjohngalt, not really. Either ruling against the PPACA's constitutionality would be pretty easy to overturn, but the Florida court's ruling in particular was pretty weak.

Posted by: MosBen | February 2, 2011 1:42 PM | Report abuse

How 'conservative' can Ezra's legal-scholar friend be, if the same person considers it be an 'outlier view' that the Constitution actually places [gasp] limits on the powers of Congress?

Perhaps Ezra's 'conservative' friend should make time to read the likes of James Madison, when he wrote extensively and on many occassions regarding the enumerated powers of Congress and the limits placed thereon....

But then again, that's the game of paint as "extreme" any view outside of their own, especially the view that the Constitution should actually mean something.

Posted by: dbw1 | February 2, 2011 2:07 PM | Report abuse

It doesn't take a majority of justices for a case to go to the Supreme Court, only 4 justices. In this case, Scalia and Thomas I take as a given after Raich. I can easily see Alito as well. Roberts would be the deciding vote: it would depend on if he wanted to "call balls and strikes" or not.
If there was no disagreement in the Circuit Courts, Roberts' vote would define his tenure and his confirmation hearing. To take a case on which there is no Circuit disagreement and overturn the law would simply be bad for his image. On the other hand, he was selected for a good reason and that's his vote is very reliable on such matters.

Posted by: ctown_woody | February 2, 2011 3:37 PM | Report abuse

I'm with you, and I see little reason to believe that there aren't 4 votes to grant cert on a plaintiff's appeal of a government win in circuit court.

Posted by: amiller5 | February 2, 2011 4:26 PM | Report abuse

Ezra, it's hard to believe there won't be at least one right wing appeals court that will rule that the law is unconstitutional. Thus the SCT will likely take one of these cases. On the merits, it is clear that the law is constitutional on any of three grounds: (1) directly under the commerce clause as Filburn has been interpreted for 70 years ( intrastate activity substantially affecting interstate commerce , (2) under the N&P clause as held in McCulloch and Raich has been interpreted by the current court ( regulating intrastate activity as part of regulating a national industry) and (3) under the Power to Tax as Butler has been interpreted for the past 70 years. A decision that the law is unconstitutional would be judicial activism in the class of the Dred Scott and Bush v Gore decisions, seeking to move the country backwards and as such President Obama should feel free to disregard it.

Posted by: cstern1 | February 2, 2011 4:49 PM | Report abuse

All the legal experts said the Supreme Court would not hear Bush v Gore either. Three of the justices who voted to stop the recount are still on the court. Scalia, Thomas and Kennedy have already shown that they are, in addition to being legal scholars, political hacks. There's every reason to believe Alito is cut from the same cloth, probably Roberts as well.

This is going to the Supreme Court and it's going to be ruled unconstitutional. Of course, if the same law had been passed by a Republican congress and president, the Supreme Court would have no interest in the case.

Posted by: suehall | February 2, 2011 5:11 PM | Report abuse

Ezra has obviously told by his left wing masters that Obamacare is in deep trouble and he needed to post a positive message to the drones to keep their spirits up

Using the "conservative legal scholar and friend" canard was a nice attempt at legitimacy but that dog won't hunt.

Why wouldn't they want to go on record and put their name to their comments? Here's why - because it never happened.

Posted by: manbearpig4 | February 3, 2011 12:18 PM | Report abuse

Ezra, for a thoughtful analysis of this topic check out Con Law professor (and Liberal!) Jonathan Turley:

Posted by: PatrickDoherty1 | February 3, 2011 12:41 PM | Report abuse

Ezra, Ezra: First of all I don't believe you have a friend who's a legal scholar and a conservative. If he WAS a friend, he would've been appalled at your stmts a few weeks ago about the Constitution.
2nd, whomever your "friend" is, and no matter he hems and haws like a weatherman predicting weather 4 days away -- 'good' chance, 'no guarantee', and all such useless, highly-caveated stmts that result in nothing, I would like you to offer him a $50,000 bet. I bet it DOES end up at the Supreme Court, for the simple reason that it either goes straight there, as it should, to save time, OR that either way the appeals court rules will result in big trouble, ergo SCOTUS must get to work -- and John Roberts will take on the challenge. So, Ezra, tell your 'friend' that I bet him $50k and if he accepts (to back up his quote according to you) then you let me know sbourg55@aol. I don't think you have such a friend. But if you do, let me know.

Posted by: sbourg55 | February 3, 2011 9:41 PM | Report abuse


Did an editor check to see if Mr. Klein's "friend" really exists?

Of course not. Janet Cooke never left WaPo, did she?

Posted by: russpoter | February 5, 2011 12:34 PM | Report abuse

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