Supreme Court Clerks Predict Health Care Reform Will Be Upheld

Supreme Court Clerks Predict Health Care Reform Will Be Upheld

WASHINGTON -- The lawyers who know the Supreme Court justices best seem largely certain that they'll uphold the president's health care law following the next three critical days of oral arguments.

The Republican-leaning American Action Forum and the centrist-Democratic group Blue Dog Research Forum released a poll of former clerks of current justices, as well as attorneys who have argued before the court. In it, they asked for predictions about how the court will rule on the Affordable Care Act.

Only 35 percent of respondents felt that the individual mandate penalizing those who decline to buy health insurance would be ruled unconstitutional. More than a quarter of respondents (27 percent) expected that the case would be thrown out until the mandate actually comes into effect in 2014, with the justices citing the Anti-Injunction Act as a way to argue that there is no standing for a suit.

The findings are far from scientific. Only 66 people participated in the survey -- 43 former clerks and 23 other attorneys -- a group American Action Forum compiled through public records searches of recent cases. Moreover, the tilt of the respondent pool was, like the court, a bit conservative. The survey describes the respondents as follows: "Of the Supreme Court clerks, 12 clerked for the 'left' block of the Court (Justices Breyer, Ginsburg, Kagan, Sotomayor), 21 clerked for the 'right' block of the Court (Justices Alito, Roberts, Scalia, Thomas), and 10 clerked for Justice Kennedy."

But the percentages still reflect what has been the conventional wisdom among those in the legal community heading into this week's oral arguments. As it stands now, the bet is that the court will ultimately rule the Affordable Care Act constitutional. The reasoning for this usually falls into one of three categories: that the small sliver of legal precedent suggests the law will be upheld, that the court would respect congressional action as a default position, or that individual justices are invested in establishing their bipartisan credentials this go-around.

That latter bit of armchair psychology always seemed a bit of a reach, with law professors pontificating about how Chief Justice Roberts wanted to shape his legacy. The poll by American Action Forum and Blue Dog Research Forum, at the very least, relies on the opinions of those individuals who have actually worked with the justices.

All the respondents were asked what would happen if the court ruled that the mandate was unconstitutional. Thirty-six percent said that the justices would end up ruling that the mandate was subsequently severable from the law, meaning that the rest of the legislation could legally stand without it. Thirty-eight percent said that they believed it was partially severable, meaning that other provisions (likely the language prohibiting discrimination against people with pre-existing conditions) had to fall with it. Just over a quarter of respondents (27 percent) said that the mandate was non-severable.

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