With the contentious health care reform case the Supreme Court will further cement its place alongside the other political branches of our government. It has become more comfortable throwing traditional legal analysis out the window. I like to call it reasoning backwards: The judge has a preferred end result to the case. He then finds the legal justification to support it in writing his opinion.
In more layman’s terms, it would be similar to a researcher abandoning the scientific method, instead choosing to only record and report data that supports her favorite hypothesis. (Maybe that’s not layman enough. If you’ve got a better analogy, I’d love to hear it in the Comments section below.)
Nowadays, if the judge thinks he may be reaching too far or too obviously contradicting his own prior opinions, he can pull a Bush v. Gore and state that this present act of legal contortionism applies only in this case and does not serve as precedent for other cases. See, Bush v. Gore does have precedential value as it gives courts the ability to create one-time exceptions to the rule of precedent.
This week the Supreme Court holds oral arguments in the case concerning the Affordable Care Act (a.k.a. Obamacare, Obomneycare, etc.). Here is my prediction for how the case will turn out.
In the end, the law will be upheld, but not for the reasons frequently stated. Don’t get me wrong, those will likely be the ones you will see in the text of the opinion.
At least one of the conservative five will show how much more they love money (or love their friends who love their money) more than they hate Obama. It reminds me of the recent case concerning a ban on violent video games. The Court overruled the ban 7-2, some using the language of free speech to justify a ruling in favor of a pro-business result: the video game industry can continue to police itself with its own ratings system.
The ACA — passed with an individual mandate, but no public option — favors the health care industry more than most alternative plans. Consider: If the ACA’s mandate is overturned, that gives the Obama administration the incentive and excuse to come back with something even better (or worse, depending on your position). For instance, they could say, “Fine, this time we won’t force you to buy anything. If you don’t have insurance, you can buy into Medicare.” The defenders of the status quo hate the Medicare-for-all approach.
Upholding the ACA is a pro-business result that will be justified by adopting a precedent-supported broad reading of the Commerce Clause. Expect a 7-2 or 6-3 split.