Roberts Will Follow Kennedy

Chief Justice RobertsI want to put in my prediction of how the Supreme Court will rule on the individual mandate of the ACA.

Rube Goldberg Law

For the record, I’m not fond of this piece of legislation. It is a huge giveaway to the insurance industry that adds nothing to the system. In the name of getting bipartisan support that it never got, it is overly complicated—a Rube Goldberg[1] monstrosity designed to provide votes more than provide healthcare. But on balance, it seems that we are better with it than we are without it. If it didn’t mean great pain and suffering for tens of millions of people, I would like to see it overturned. It would be interesting to see what the Republicans would do. The truth is that the ACA was the Republican healthcare plan. It is the “free market” solution to our problem of skyrocketing healthcare costs. (I don’t think the Republicans see the uninsured as a problem.) When they decided that the individual mandate was unacceptable, they effectively cut their own throats. Now the only thing I’ve heard them suggest is to let people in one state buy insurance from another. This would help our healthcare problems, but only very little; it effectively leaves the Republicans with nothing to replace the ACA with. (Remember all the Republicans claiming that they wanted to “repeal and replace Obamacare”?) So in the long run, we are left with some kind of single payer health insurance. The problem is that this is likely to take a long time—enough so that I will already be in the Medicare system (assuming the Republicans don’t destroy it first—or the Democrats who seem inclined to do this in the name of being “serious”).

The Moderates

I do not know how the Supreme Court will rule on the individual mandate. I am certain that the four moderate justices (commonly, although erroneous, called “liberal”) will vote to uphold the law. This is because they are not primarily political actors; they still behave the way judges traditionally have; this is not to say they are above politics, but they are not motivated by them in a fundamental way. How the conservative justices will rule is less certain. Scalia, Thomas, and Alito will almost certainly rule against the law; they are not only extremely political in their rulings, they seem to be uninterested in how corrupt they appear.

Roberts Against

As is the case so much these days, the fate of the ACA will depend upon Justice Kennedy. Even if he votes to strike the individual mandate, he may vote to uphold the rest of the ACA. I don’t want to get into that issue, however. What I think is important is that Chief Justice Roberts’ ruling will depend upon Kennedy’s. He will vote whichever way Kennedy votes. If Kennedy votes to strike, Roberts will do so because he wants the law destroyed. This is not, of course, because he is against the law. If a conservative were in the White House, none of the conservatives would vote against the ACA. The vote against it is a vote against the President. This is a way to slap down Obama and perhaps deprive him of a second term.

Roberts For

If Kennedy votes to uphold the ACA, Roberts will concur. He will do this because unlike Scalia, Thomas, and Alito, Roberts does care about how the Court is perceived. He will vote to uphold the ACA so that he can better make the case that the conservatives on the court are not simply political hacks. A ruling to uphold the ACA will make the rulings on Bush v. Gore and Citizens United v. Federal Election Commission appear less political. But having the Court appear less political is not as important as embarrassing the President. To Roberts, voting to uphold the ACA is just a way of making a bad situation a little better.

Final Ruling

So the final ruling will be 4-5 if the Court rules against the ACA and 6-3 if the Court rules for. Regardless, the decision will be political. Of course, we already knew that when Scalia brought up broccoli—a common example from Fox News and conservative media. I’ve never thought that the Court was above politics, but since Bush v. Gore, it has lost any pretense. I feel sorry for the moderates on the Court, because they really do try. And still I hear people claim that the Court is polarized when this isn’t the case; there are four moderate and (as much as possible) apolitical justices and four conservative ideologues. Kennedy is just the one conservative who remembers the way the court used to be. Of course, even he wasn’t reasonable enough to rule that all the votes in Florida should be counted in 2000. Electing the next President of the United States was just too exciting to resist. Who knows if he’ll feel the same way this year.


Republicans see the Supreme Court as a political institution. You can see this by how they appoint justices who are very old. Other than Elena Kagan (whose nomination may indicate that the Democrats have decided that they should start playing the same game), all of the Republican nominations have been younger. Here is the list with the age of the justice during the year they were placed on the Court:

Age Justice Party
50 Antonin Scalia R
52 Anthony Kennedy R
43 Clarence Thomas R
60 Ruth Bader Ginsburg D
56 Stephen Breyer D
50 John G. Roberts R
56 Samuel Alito R
55 Sonia Sotomayor D
50 Elena Kagan D

And this situation has been in place farther back. Rehnquist (48), Sandra Day O’Connor (51), and David Souter (51)—a Bush Sr. nominee, even though he turned out to be a moderate—were all younger than John Paul Stevens (55). Before the Reagan appointments onward, conservatives went for experienced thinkers rather than political ideologues. The three Nixon appointees were all old and moderate: Lewis F. Powell, Jr. (65), Harry Blackmun (62), and Warren E. Burger (62). You have to go back to Eisenhower’s recess appointment of Potter Stewart (43) in 1958 to find someone as young as Thomas nominated to the Court. Stewart’s career shows that one does not have to be old to be a brilliant justice. Thomas’ career does much harm to the reputation of young justices. The point here is not that young justices cannot be good, but rather that Republicans have specifically nominated young justices so as to maximize their political power. Political power is more important than good governance to Republicans. But then, we already knew that.

[1] I found this delightful video about Rube Goldberg from the group Rocket Boom. They are very good. I’m surprised more people don’t watch their stuff. They are well worth checking out: