United Liberty

Though no one thought a ruling on ObamaCare would come yesterday, there was quite a turnout of reporters at the Supreme Court as decision were announced in several pending cases. We don’t yet know how the nation’s High Court will go in this specific case, but some hints may have been recently dropped by two justices, as Avik Roy explains:

On Friday, Associate Justice Ruth Bader Ginsburg spoke at the annual Court review of the American Constitution Society, a group “dedicated to…countering the activist conservative legal movement.” Ginsburg said that she was quite aware of the controversy surrounding the Obamacare case. “Some have described the controversy as unprecedented and they may be right if they mean the number of press conferences, prayer circles, protests, counter protests, going on outside the court while oral argument was under way inside.”

In her ACS remarks, Ginsburg suggested that she might be on the dissenting side of the case. “I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change,” said Ginsburg, in the context of a 2007 pay discrimination case.

Most tellingly, she touched upon the key question that I believe the Court is still working through: what to do with the law if the individual mandate is indeed found to be unconstitutional.

My sources (which I freely admit to be third-hand) suggest that Kennedy will side with the conservatives and strike down the Affordable Care Act’s requirement that nearly every American must buy health insurance. The key question is: how much of the rest of the law should be struck down along with it?

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

Roy also notes that Justice Antonin Scalia recently wrote in a new book that the famed Wikard v. Filburn, a case that ramped up the expansive view of the Commerce Clause, was “wrongly decided.” There was probably already little question that Scalia would side with the conservatives on the Court to overturn ObamaCare. But Roy notes that Scalia’s remarks “may shed light into the thinking of Justices Alito and Roberts, who are thought to share Scalia’s precedent-oriented approach to dealing with the Commerce Clause.”

We’re going to find out which way the Supreme Court is going either Thursday of this week or, most likely, on Monday. And really, it’s going to come down to Justice Anthony Kennedy. But if you want to know the various scenarios of what will happen depending on the Court’s decisions in the four questions before them, BuzzFeed put together this excellent flow-chart to help explain (click to enlarge):