Most Former Supreme Court Law Clerks Believe Mandate Will Be Struck Down
The one group of people who may know the most about how the Supreme Court works think its likely that the Affordable Care Act’s individual mandate will struck down:
A new survey of 38 former clerks of current Supreme Court justices and 18 attorneys who have argued cases before the high court found that most of them think the court will rule that the individual mandate is unconstitutional. The mandate is the centerpiece of the Obama administration’s signature health care law and it is unknown whether the law can survive without that piece.
The American Action Forum and Center Forward, which commissioned the survey (pdf), also commissioned one before oral arguments.
In March, those respondents — on average — said there was only a 35 percent probability that the a “SCOTUS majority” would find the mandate unconstitutional. After arguments that average went up to 57 percent.
“I feel like a dope, because I was one of those who predicted that the Court would uphold the statute by a lopsided majority — maybe even 8-1. Although you never know, it now appears pretty likely that this prediction was way off,” one of the respondents wrote in his survey.
Another one said it was a toss up: “5-4, either way.”
Another called also called it a toss up, but they expanded on how their thinking has changed: “The case largely depends on which way Kennedy and to a lesser extent Roberts go. Before oral argument, I thought the plaintiffs had a 35% chance. The argument led me to up that estimate to 50%,” the respondent wrote.
Seventy percent of respondents also said that the “the justices questioning indicated that they were more skeptical about the law’s constitutionality than I had expected.”
That last point, I think, is the one that rings true for so many observers of this case. Even in the face of the decisions by a Federal Judge in Florida and a panel of the 11th Circuit Court of Appeals, the general consensus seemed to be that the Court was far more likely to uphold the law than strike it down. It wasn’t till March’s oral arguments, and specifically the reaction of Justice Kennedy, that it became clear that the law was in peril.