The ObamaCare ruling should be announced in minutes. Here is my main prediction: The United States Supreme Court will either (1) strike down the individual mandate by a vote of 5 to 4 or (2) uphold the mandate by a vote of 6 to 3. The great unknown is how Anthony Kennedy will vote. Either way, John Roberts writes the majority opinion. I have no prediction about the other issues involved in the case, such as severability and Medicaid funding. Here are some subsidiary predictions: (1) At least seven of the nine justices will write opinions. This is an important case about the scope and limits of the Commerce Power. Each justice will want to address those limits by setting forth a coherent theory. (2) The opinions, in total, will reach 300 pages.
Addendum: Conservatives won the battle but lost the war. The Court ruled, 5-4, that the individual mandate violates the Commerce Clause. That is an important victory. Unfortunately, Chief Justice John Roberts found another basis—the taxing power—on which to uphold the mandate. There were four opinions rather than the seven or more I predicted: by Justices Roberts, Ginsburg, Scalia, and Thomas. Roberts did indeed write the majority opinion. The opinions totaled 193 pages, not the 300 I predicted.
Addendum 2: I thought of a more perspicuous way to put it. The Court ruled, 5-4, that the individual mandate, construed as a mandate, is unconstitutional (under the Commerce Clause), but that, construed as a tax, it is constitutional (under the Tax Clause). My prediction that the mandate would be struck down was, in retrospect, ambiguous. Was I predicting that the mandate would be struck down simpliciter, or only that it would be struck down as a mandate under the Commerce Clause? The answer is that I didn't envisage any other basis on which to strike it down. It was either strike it down as a violation of the Commerce Clause or don't strike it down at all. Bottom line: The ruling pleases me as a jurisprudential matter, since it sets clear limits to Congress's Commerce Power. It disappoints me as a political matter, since it allows the "mandate," and therefore the bill as a whole, to stand. I take heart from the fact that the matter hasn't been disposed of. Americans very much dislike ObamaCare, according to surveys. Today's ruling may motivate them to throw Democrats out of office. If we conservatives get a Republican White House and Congress this fall, we'll get a repeal of ObamaCare and a clean slate on which to write health reform. If this happens, then we conservatives will have won the battle and the war.
Addendum 3: Many people are confused by Chief Justice John Roberts's ruling. "I thought he was a conservative!" Actually, the confusion reflects an inability to distinguish between different types of conservatism. Roberts is a judicial conservative. Today's ruling, which found constitutional grounds to uphold an act of Congress, reflects that philosophy. Roberts is not (or not necessarily) a political conservative. In other words, today's ruling by Roberts is conservative in one sense (judicial) but not in another (political). If we fail to distinguish these two senses, we are bound to confuse ourselves.
