Forecasting the Supreme Court Vote on “Obamacare”

by John Sides on November 21, 2011 · 18 comments

in Health Care,Judicial,Law

This is a guest post by political scientists Michael Bailey and Forrest Maltzman.

The Supreme Court has reinserted itself in the heart of domestic politics by agreeing to review the Patient Protection and Affordable Care Act (PPACA).  How is the Court likely to rule?  Consider two scenarios.

The first scenario relies on a prominent theory of judicial decision-making called the attitudinal model.  It holds that justices are unconstrained policymakers.  To predict and explain Court actions we simply need to figure out the policy implications of the legislation and justices policy preferences.  The vote takes care of itself from that point.

In our recently published book, The Constrained Court (you should buy it here—think holiday stocking stuffer), we use politicians’ positions on Court cases to “bridge” preference estimates making them comparable across Congress and the Supreme Court (see here for more details).  Applying this technique to the PPACA we can estimate probability that each justice would vote to overturn the law if ideology were the only factor.  Based on preferences alone, 5 justices, including the “swing” justice Anthony Kennedy, are predicted to vote to overturn the PPACA —as depicted in the top graph below.  In the graph immediately below it, we calculate the probable vote margin.  The most likely scenario is a 5-4 decision overturning the PPACA.  Under this scenario, the Court would be a lock to overturn.  Goodbye Obamacare.

But consider a second scenario.  We (and many others) think there is more to justices’ behavior than policy preferences.  Justices have famously bucked their presumed policy preferences on high-profile cases—such as when Rehnquist supported Miranda rights in Dickerson v. United States based on support for precedent and Scalia supported flag-burners (whom he openly admitted he’d like to see in jail) in Texas v. Johnson based on support for First Amendment speech rights. We show in our book that virtually every justice deviates from their policy preferences in favor of one or more of several prominent legal values such as respect for precedent, although the justices differ in how much they value precedent.

In considering the possible role of precedent, what precedent(s) should we take into account?  This is not a simple question.  While United States v. Lopez and United States v. Morrison offer possible precedents, we are persuaded that the Wickard v. Filburn and Gonzales v. Raich are most clearly relevant (as argued, for example, in conservative Judge Laurence Silberman’s DC Circuit decision upholding the law).

Given that precedent established by Wickard and Gonzales is supportive of upholding the law, we then calculated the predicted vote of each justice based not only on their policy preferences but based on their tendency to defer to precedent.   Deference to precedent varies by justice: Kennedy does so much more than Thomas, for example.   More details on the underlying method are here.

Here are the results:


Kennedy’s predicted behavior shifts dramatically, going from a certain vote to overturn the PPACA in the ideology-only model to only a 46% likelihood of voting to overturn when we factor in precedent.  Roberts and Alito also shift, although not so markedly.  In the second graph, the probability of overturning the law is therefore much lower (30%).

As always, predictions are hard, especially about the future (see Berra v. Bohr) and especially when it isn’t clear which precedents apply or which legal doctrines are likely to dominate. Thus, any specific prediction must go beyond the model.

That said, here is ours: 6-3 or 7-2 to uphold the law.

Respect for precedent pushes Kennedy to support the law and Roberts comes along for the ride in order to keep the opinion out of Kennedy’s hands (and possibly writing an opinion that cabins the Commerce Clause more than it is now).  Alito probably goes with Roberts, but seems more up for grabs.  If we are wrong, expect the justices to either downplay precedent and emphasize other legal values (such as federalism) or play up the few precedents that protect state rights.

Policy motivations won’t be irrelevant, but score this one for law.

{ 18 comments }

Alan November 21, 2011 at 12:02 pm

Arguably Gonzales v. Raich and Wickard v. Filburn are both precedents that apply to regulating activity. The healthcare bill regulates inactivity (not buying insurance) and therefore the justices involved may feel that they can ignore precedent and apply their own ideology.

John Sides November 21, 2011 at 12:10 pm

The Silberman opinion isn’t kind to the activity/inactivity distinction, fwiw. This is one reason why his opinion may suggest that some conservative justices will vote to uphold this part of the PPACA.

Scott Monje November 21, 2011 at 12:29 pm

Wickard v. Filburn concluded that not engaging in interstate commerce had an impact on interstate commerce. To me, that would seem to make it an especially relevant precedent.

Apart from that, insurance isn’t really a commodity like broccoli. Health care is the commodity; insurance is the means for paying for it. No one has proposed opting out of health care, only out of paying for it. To borrow the GOP’s slippery slope analogy, where will it all end? If people can opt out of this, will they soon be allowed to opt out of paying for their broccoli at the supermarket?

Alan November 21, 2011 at 1:03 pm

One can opt out of insurance and pay for healthcare pay-as-you-go – paying for each individual operation or medicine.

That said, fundamentally I agree – everyone will need to use healthcare at some point (everyone gets sick, especially as we get older), so it can be argued that not buying healthcare is not ‘inactivity’.

Scott Monje November 21, 2011 at 1:55 pm

And everyone pulled unconscious from a car wreck is taken to a hospital.

Chris November 21, 2011 at 12:30 pm

Has anyone predicted SCOTUS behavior on this on the basis of bridging observations from circuit court votes? Surely that would be more directly comparable than comparing it to legislative preferences.

Elle March 10, 2012 at 10:55 pm

Before reading the essay above, I did the following analysis of the GOP federal court judges’ decisions on PPACA and posted it at misc.legal.moderated:

Head Count of GOP Federal Judges’ Rulings

Four (or five) ruled the mandate unconstitutional:
Vinson (Reagan, District)
Hudson (Bush 2, District)
Dubina (Bush 1, Appeals)
Graham (Reagan, Appeals)
(Frank Hull, Clinton, Appeals, kinda known as Right leaning and
pointedly selected as a “moderate” by Clinton, so to speak)

Four ruled the mandate Constitutional and/or said it can’t be decided
until the tax penalty takes effect:
Marcus (Reagan, District, Clinton Appeals; known GOPer)
Silberman (Reagan, Appeals)
Kavanaugh (Bush 2, Appeals, tax penalty ruling)
Sutton (Bush 2, Appeals, clerked for Scalia)

This argues for 2.2 (= 4/9*5) of the five so-called conservative Justices voting to rule the mandate Constitutional, or a 6-3 to 7-2 decision.

Individual GOP Justices Best Guess:
Thomas — count on it, he will rule the PPACA unconstitutional. I
would seriously consider betting my house on this but, not being a
high stakes gambler, will wager five dollars for fun and tip money at
my next, alcohol-free lunch out.

Alito — my bet is he will rule it unconstitutional. Guy seems more
political than legal. I would bet a dollar on this one.

Scalia — hissy fit expected, due to the need to square his reasoning
in Gonzales v. Raich (2005 marijuana case) with the loathing he may
feel for the PPACA. If forced to bet, I say he will do what Kavanaugh
did and use the tax penalty business to postpone a ruling on the
“merits.” I would bet a dollar on this one.

Roberts — Betting he’s more like Silberman, Marcus, Sutton and
Kavanaugh than he is the others. Plus GWU law professor said Roberts “will likely vote to uphold the mandate given the very expansive views of the Necessary and Proper clause that he signed on to just recently in United States v. Comstock.” See http://www.scotusblog.com/2011/08/affordable-care-act-predictions/

Kennedy — will rule it constitutional. I would bet a dollar on it,
for fun and believing I am more likely to win than not. Bet to be
hedged with other bets above.

SCOTUS Justices Scalia and Kennedy both ruled with the majority in the
marijuana case, Gonzales v. Raich (2005). In the minority were only
three: O’Connor, Rehnquist and Thomas.

Perhaps more weight should be given to the Appeals Court judges. If
so, then it seems 2.5 GOP Justices will rule the PPACA Constitutional and/
or tax penalty disallows ruling on the merits at this time. Then it’s
6.5 to 2.5. My forecast remains at least a 6-3 majority ruling the
mandate constitutional.

Intrade says there is a 39% chance that the US Supreme Court will rule
individual mandate unconstitutional before midnight ET 31 Dec 2012.

Yale law professor Linda Greenhouse said it would be ruled Constitutional in a column earlier in 2012. This does not surprise. But the fact that her nemesis, Judge Laurence Silberman ruled thusly does seem to bolster the strength of the constitutionality of the PPACA. (Silberman accused Greenhouse of trying to influence judicial decision-making via media and public pressure, concurring that “The Greenhouse Effect” is very real.)

Harvard Law Professor Laurence Tribe in a column last year seems to put the vote at around 8-1 for Constitutionality. But he is as flaming liberal as they come and is also no dummy when it comes to using media pressure. ;-)

In an August, 2011 online essay, GWU Law Professor Orin Kerr puts the vote at somewhere between 6-3 and 8-1. This essay is notable because it came out before the DC circuit (and Silberman) ruled in November, 2011. Kerr pretty much nailed how Silberman would vote.

RobC November 21, 2011 at 12:42 pm

I have no quarrel with the authors’ analysis, but I do wonder about their opening sentence: “The Supreme Court has reinserted itself in the heart of domestic politics by agreeing to review the Patient Protection and Affordable Care Act (PPACA).” That formulation–reinserted in the heart of domestic politics–has a decidedly pejorative tone and seems to suggest that by reviewing PPACA the Court is acting politically, even inappropriately. But ruling on the constitutionality of statutes is a large part of their job description, and by doing so they are no more inserting themselves in the heart of domestic politics than they did when they ruled on military commissions at Guantanamo or upheld the constitutionality of the Civil Rights Act of 1964. Perhaps the authors have described Brown v. Board of Education as the Court reinserting itself in the heart of domestic politics, but somehow I doubt it.

idiot November 21, 2011 at 12:50 pm

The Supreme Court is viewed as a political actor because what it does is political. It’s not pejorative or inappropriate to describe simply what is actually is going on. The only way you would see that is if you believe the Court has to be an impartial observer and interpreter of the law, but that is probably unrealistic for anybody to be.

Wonks Anonymous November 21, 2011 at 1:57 pm

“idiot” is right that SCOTUS is a political actor, but I think it would be wrong to ascribe too much agency to the court in their agreeing to review the case (they might have preferred not to do so). There is a circuit split, with some federal courts upholding the act and others striking it down. Under that circumstance it is the job of SCOTUS to lay down the constitutional law for the rest of the courts to follow.

Scott Monje November 21, 2011 at 1:59 pm

Given that appellate decisions have gone both ways, it would be irresponsible for the Court not to “insert itself.” Still, it will inevitably have political consequences, even if the decision itself could be kept apolitical.

DiMaggio November 21, 2011 at 3:20 pm

Interesting analysis. I’m very familiar with the attitudinal model and argues related to precedent. The attitudinal model suggests however that precedent in and of itself is not helpful since justices can find a precedent on either side of an issue and since, as spaeth/segal argue, they will use the precedent that reinforces the justices’ pre-existing ideology. of course, the attitudinal model, according to spaeth/segal’s own findings, only predicts accurately 75% of the time (which is pretty good!). So I’m potentially very open to other explanations for how the supreme court may vote. Hopefully there are more details in “the constrained court,” which I haven’t picked up yet, but am looking forward to reading.

Tracy Lightcap November 21, 2011 at 7:13 pm

I agree with most of this analysis. I think Segal and Spaeth would too. They would never predict votes in any case simply on ideology; case facts always play a role as does the role of ideology in parallel lines of cases. Further, the activation of ideology by case facts varies in its effects; Kennedy, for instance, is a conservative, but not as rock-ribbed or consistent as Thomas.
I’d be surprised – not too surprised, mind, but surprised – if Kennedy would overturn the whole law so soon after Gonzales. The real wild card is Scalia; I’m not sure how to call his vote, especially given that two former clerks of his have written to uphold the law. No doubt they have heard the boss on this kind of thing before. (Btw, you should hear my wife, the management labor lawyer, on Scalia and upholding federal administrative power.) What I think might happen is a vote to sever the mandate from the rest of the law and a direction to Congress, a la Furman, on how to rewrite the law. But I wouldn’t be surprised to see the law upheld either. I was predicting a 6 – 3 myself, though I’m undecided between Roberts and Scalia as the sixth vote and on how much of the law survives.

Marc A. Mallon November 22, 2011 at 11:00 am

Look for Justice Kennedy to grasp the nettle and limit or overrule Wickard v. Filburn.

Sean November 23, 2011 at 4:37 pm

I think everyone is forgetting the standing and jurisdiction issues involved in this case. I could see the court dismissing the case due to either one or both. On an ideological basis this is a way for certain parties on the bench to avoid making a decision and keep the debate relevant for the next election. Politically speaking keeping this issue relevant for the next election cycle would be a big boost for the more right leaning demographic. This talking point has been heavily invested in by both the republican party, Fox news and the Tea Party. Keeping the talking point relevant would allow the GOP to capitalize on the discontent. Deciding the issue either way may affect their voter turn out. Deciding the law was constitutional would probably bring the right wing voters out as well, but it would be a political loss. Thus it would be much harder to capitalize on the outcry. In presidential debates it would be hard to make the issue a talking point when the Democratic party need only refer the GOP candidate to the SCOTUS. On the other side if they find it unconstitutional it would probably help the Democratic party. If you take the talking point out of the equation now it becomes very hard to make cries of socialism and communism. Everything goes back to the status quo. In that case you have all of the immigration and union issues on the table, combined with incumbent president being favored, I would expect the Democratic Party to prevail. So if someone on the SCOTUS really had a political motivation involved in their decision, then not deciding the issue would be the biggest political boost to the GOP.

When you really look at the commerce clause and taxing power this law seems valid. The main issue to revoke the bill is “we have never done this before”. That really isn’t a very valid argument when you think about. On the other side there are multiple examples of the commerce clause being used in similar fashions, but not to the same extent. If you look at this issue as a use of the taxing power the law is quite similar to a number of other laws. The problem is that for political reasons the “individual mandate” was not referred to as a tax. Still if it looks like a tax, acts like a tax, and quacks like a tax it probably is a tax.

I give it roughly a 10-20% chance they dismiss the case on standing and probably a 20-30% chance they dismiss on jurisdiction in a tax case.

Rob Robinson November 28, 2011 at 3:52 pm

This reply is probably far too late for anyone to pay attention, but I would submit this reply, while smart, needs to make a better distinction between “partisan” and “ideological.” Thomas Keck had a piece on this a few years back, I believe. I find it hard to imagine, for example, Justice Thomas voting to deny jurisdiction rather than voting to strike down the mandate just to help the Republican party. For him, I would argue ideology > partisanship.

Jeffrey Schilling March 26, 2012 at 4:48 pm

This is a once in a generation case that strikes at the heart of what it means to have a constitutionally limited form of government. If the PPACA is upheld there will be no logical limiting factor on the Federal government’s power to regulate. I predict that even the liberal justices recognize this and will vote to overturn the PPACA in a 9-0 decision.

Mike March 27, 2012 at 3:48 pm

Your entire analysis was based on statistical wishful thinking. Looks like you will be wrong.

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