Bloomberg’s Bob Drummond reported two and a half days ago that while 19 out of 21 top constitutional scholars feel the individual mandate of the Affordable Care Act ought to be upheld on the basis of legal precedent, just eight think the Supreme Court will actually do so.
Why? I’ll tell you why. Because the five conservative Supremes (John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito) have made it clear they’re commited to standing by their homies above everything else. That was apparent after Bush v. Gore, and extra-clear after they decided in 2010 that corporations have the same rights as people. Now it’s a running joke.
More from Drummond: “‘The precedent makes this a very easy case,’ said Christina Whitman, a University of Michigan law professor. ‘But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate.”
“Five of the 21 professors who responded, including Whitman, said the court is likely to strike down the coverage requirement. Underscoring the high stakes and complexity of the debate, eight described the outcome as a toss-up.
“‘There was certainly a lot of hostile questioning by the more conservative members of the court,” said Jesse Choper, a law professor at the University of California at Berkeley who described the court as likely to support the mandate. ‘It’s relatively straightforward — if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.'”