SCOTUS Watching

Tomorrow morning the Supreme Court will hand down a decision of historic proportions when it announces its opinion on the Affordable Care Act, President Obama's and the Democratic Party's signature piece of legislation.

Since the court heard oral arguments in March there has been endless speculation from analysts, pundits, legal thinkers and politicians on what the outcome may be. That speculation has only increased as it has become clear that the nine intend to hold the ACA decision until Thursday morning.

Monday's decisions on Arizona's immigration law and Montana's campaign finance law have added fuel to the fire. Two things in particular stand out about the Arizona decision. One, Chief Justice Roberts sided with the liberals on the court, as well as Anthony Kennedy, in striking down nearly all of the law. The only section upheld is subject to further review once enacted. As Walter Dellinger (Solicitor General in the Clinton administration) wrote, "Here are the provisions the court held were valid: No provisions. Not any. None."  The willingness of the Chief Justice to side with Kennedy, Breyer, Sotomayor and Ginsburg (Kagan recused herself) and assert federal supremacy over the states on the issue of immigration is a blow to the extreme Federalists and Originalists on the court. It also shows a willingness on the part of the Chief Justice to distance the court from the tone of partisanship that has recently dominated the American political landscape.

Second, the Arizona decision is notable for Justice Antonin Scalia's departure from any pretense of political objectivity. In a dissent separate from those of Alito and Thomas, Scalia made reference to the Obama administration's recent executive order calling for the non-enforcement of certain immigration laws. This had no relationship to the legal questions at hand and, to many observers, gave the impression of a justice overtaken by his unbridled partisanship. Some have speculated that Scalia is upset because Thursday's impending decision may not turn out as he wanted.

Here, then, is my idle speculation and prediction for tomorrow's historic decision. I believe the court will uphold all or nearly all of the ACA by a 6-3 margin with Justices Roberts and Kennedy siding with the four liberals and with Roberts writing the decision. If part of the law is stricken, it will be the mandate and that part of the decision will be 5-4 with Kennedy and Roberts joining Thomas, Alito and Scalia. That said, I believe there is a good chance that the entire law will be upheld. Regardless of the outcome, expect many separate opinions and expect Scalia, if the entire law is not stricken, to continue his clearly partisan and doomsday style opinion writing.