by Max Brantley
Linda Greenhouse, the esteemed former Supreme Court reporter for the New York Times, continues to blog on legal matters for the newspaper and today offers a case that the partisan Supreme Court majority didn't necessarily demonstrate a reflexive anti-Obama stance in its questioning of attorneys during oral arguments on the health care reform law.
She's better informed than I so I won't dispute her optimism that there's still a chance that a fair analysis will determine votes by Justices Roberts, Alito and Kennedy. She makes no claims for anything but partisanship from the "clownish" Scalia or Thomas. Could any of the court's conservatives side with the Obama administration?
By the end of the arguments, Chief Justice Roberts and, to a lesser extent, Justice Kennedy were heading in that direction, it seemed to me. While they might have initially seen the government’s defense of the law as a slippery slope, leading from hospital emergency rooms to the vegetable bin, they appeared increasingly concerned by the implications of the plaintiffs’ arguments as well. They seemed particularly alarmed by the categorical position put forward by Michael A. Carvin, the lawyer representing the small-business plaintiffs, who argued that a victory for the government would mean that Congress could “regulate every human activity from cradle to grave.”
Greenhouse, who is reviled by conservatives (of course), also does some nuanced analysis of the already infamous 5-4 ruling upholding a strip search of a minor law violator. She believes internal court politics may have been at play and the decision might not be so sweeping as it appears. The splintered opinion included remarks emphasizing limits on the ruling. She places this in the context of the health case.
All as tantalizing as it is unknowable from the outside. The larger point – the relevance to the health care case – is that there are obviously tensions and even rifts within the Supreme Court that don’t map readily onto the one-dimensional 5-to-4 narrative. This is the challenge facing Chief Justice Roberts as he tries to lead the court to an outcome. While I expect the statute to survive, I also have two other predictions. One is that however the case comes out, the chief justice will be in the majority and will write the controlling opinion. I don’t say “majority opinion” because I don’t think there are five justices who will necessarily agree on a common rationale for their agreed upon result. In addition, or as an alternative to upholding the individual mandate as an exercise of Congressional authority under the Commerce Clause, some may prefer to treat the individual mandate as a tax, squarely within Congress’s taxing power. Others may invoke the “necessary and proper” clause of Article I, Section 8. Consider that a court that spent nearly six months on the strip-search case has barely three months before the end of the current term to decide the future of health care.