Bloomburg news surveyed 21 top constitutional law professors about the impending Supreme Court decision on the Affordable Care Act. 19 of them said that if the court follows legal precedent, it (the individual mandate) will be upheld.
“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.”
Only 8 of the 21 legal scholars actually expect the mandate to be upheld, despite the clear direction of constitutional precedent.
What does this tell us about the conservative majority on the Court? And the old right-wing saw about liberal activist judges?
18 of the 21 agreed that if the individual mandate is overturned on a 5-4 vote, it will damage the credibility of the Court itself.
“When you take the fact of a high-profile, enormously controversial and politically salient case -- to have it decided by the narrowest majority with a party-line split looks very bad, it looks like the court is simply an arm of one political party,” University of Chicago Law Professor Dennis Hutchinson said in an interview.
However, I'm not going to despair yet, at 9:23am on Monday June 25th (an announcement could come as soon as 10am). Liberal constitutional lion Bruce Ackerman still believes that conservatives Roberts and Kennedy won't be able to pull the trigger: “I continue to find it extremely unlikely that Justices Roberts and Kennedy will support a 5-4 decision that has such an insubstantial basis in 75 years of Supreme Court case law."
Ackerman, alas, was the only respondent who said the court is very likely to uphold the insurance-coverage requirement -- the opinion that was held by most legal observers across the ideological spectrum, until oral arguments.
- Mark Santow
- I am Associate Professor and Chair of the History Department at the University of Massachusetts-Dartmouth. I am also the Academic Director of the Clemente Course in the Humanities, in New Bedford MA. Author of "Social Security and the Middle Class Squeeze" (Praeger, 2005) and the forthcoming "Saul Alinsky the Dilemma of Race in the Post-War City" (University of Chicago Press), my teaching and scholarship focuses on American urban history, social policy, and politics. I am presently writing a book on home ownership in modern America, entitled "Castles Made of Sand? Home Ownership and the American Dream." I live in Providence RI, where I have served on the School Board since March 2015. All opinions posted here are my own.