Evaluating Forecasts of the Supreme Court’s Health Care Ruling

by John Sides on July 19, 2012 · 5 comments

in Health Care,Judicial,Law

This is a guest post by my colleague Brandon Bartels.

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As the issue of forecasting has been on the minds of political scientists and journalists as of late (examples 1 2 3 4), I thought I would weigh in on this issue as it pertains to predictions of the Supreme Court’s ruling on the Affordable Care Act (ACA). My goal here is to provide a means of evaluating various forecasts of this landmark ruling. I focus on 11 predictions—included at the end of this post—from political scientists, law professors, and journalists made in print (or broadcast). These 11 predictions, I believe, provide a good representation of the forecasts that were proffered more generally.

Just to review, in National Federation of Independent Business v. Sebelius, the federal government had argued that the individual mandate was constitutionally permissible under three clauses of the U.S. Constitution: (1) the commerce clause, (2) the necessary and proper (N&P) clause, and (3) the tax clause. By a vote of 5 (Roberts, Scalia, Kennedy, Thomas, Alito) to 4 (Ginsburg, Breyer, Sotomayor, Kagan), the Court ruled that the mandate was unconstitutional under the commerce clause and N&P clause. But by a vote of 5 (Roberts, Ginsburg, Breyer, Sotomayor, Kagan) to 4 (Scalia, Kennedy, Thomas, Alito), the Court ruled that the penalty assessed to individuals for not purchasing health insurance amounts to a tax, which is constitutionally permissible under the tax clause, and the ACA was upheld (with exception of the narrow interpretation on the Medicaid issue). The four dissenters (Scalia, Kennedy, Thomas, Alito) wanted to strike down the entire ACA as unconstitutional.

To evaluate various forecasts, we should assess not only predictions for the overall case disposition (strike or uphold), but the predictions for the vote splits on each legal provision and the reasoning individuals gave for their predictions. Below the fold are summaries of forecasts by three political scientists, four law professors, and four journalists categorized by these important components (as well as on the severability issue). On the overall case disposition that the Court would uphold the ACA, among political scientists, Bailey and Maltzman were correct, while Segal and Evans were incorrect. Three of the four legal scholars examined here correctly predicted that the ACA, and particularly the mandate, would be upheld. Note that Kerr (in 2010) and Adler registered their predictions a full 2 years before the Court’s oral arguments on the case. Early on, many legal scholars correctly believed that the Court would not overturn the ACA. Among the journalists analyzed here, three of the four were correct, with Toobin famously reversing course—thinking it would be struck down—in an interview on CNN after oral arguments.

None of these forecasts correctly predicted that the mandate would be ruled unconstitutional under the commerce and N&P clauses yet constitutionally valid under the tax clause. Schultz was close on these particulars when he predicted—albeit with little certainty—that the Court would “more likely [vote] 5-4 to strike down the individual mandate on commerce clause grounds (maybe upheld on taxing authority)” (emphasis added). Moreover, nobody predicted that Chief Justice Roberts would be the lone conservative justice to join the liberals to uphold the mandate, let alone on tax clause grounds instead of commerce or N&P clause grounds. While Bailey and Maltzman (who registered their forecast back in November 2011) correctly predicted the overall case disposition, their predictions on the vote splits and the reasoning were less than accurate (a point to which they concede to an extent). They incorrectly implied that the Court would find the mandate constitutionally valid under the commerce clause, arguing that Wickard v. Filburn (1942) and Gonzales v. Raich (2005) were “[the] most clearly relevant [precedents].” These precedents provided a legal justification for upholding the mandate under the commerce clause, and Bailey and Maltzman predicted that Roberts and Kennedy and maybe even Alito would vote to uphold the ACA on commerce clause grounds. All three of these justices, of course, voted that the mandate was unconstitutional under the commerce clause, and Kennedy and Alito voted to invalidate the entire ACA. The rationale for Bailey and Maltzman’s prediction is deference to some of the key legal precedents declaring Congress has broad regulatory powers under the commerce clause. Bailey and Maltzman conclude by saying, “Policy motivations won’t be irrelevant, but score this one for law.” After the decision, they wrote a follow-up post titled, “The Law Matters.” However, the type of legal constraint that Bailey and Maltzman predicted would occur—deference to key commerce clause legal precedents—actually did not occur, particularly among Roberts and Kennedy (and Alito, for whom Bailey and Maltzman had some doubts about voting to uphold).

Contrast this reasoning with that of both Segal and Evans, who predicted that the Court would strike down the mandate under the commerce clause along ideological lines (5-4, just as the vote actually occurred on the commerce clause issue). So while Segal and Evans both incorrectly predicted the ACA would be struck down, their predictions on the constitutionality of the mandate under the commerce clause were exactly right, while Bailey and Maltzman’s prediction on this specific issue was incorrect. Moreover, Evans’ prediction underscores the importance of oral arguments, a topic political scientists have analyzed. Some who thought the Court would uphold the ACA before oral arguments changed their tune after oral arguments (see Toobin), given the tough questioning of the Solicitor General by some of the conservative justices (including Kennedy) who some people thought would vote to uphold.

The broader point is that there can still be value in incorrect forecasts and flaws in correct forecasts, particularly in a case as complicated as this one. While Segal and Evans were wrong on the overall case outcome, their predictions on the reasoning contained considerable accuracy and therefore contain great value. The ultimate value of Segal’s forecast is his prediction that the case would be decided largely along ideological lines and that several of the justices would not be constrained by certain commerce clause precedents or judicial restraint and concerns over deference to the political branches. The only vote Segal missed, albeit the pivotal one, was Roberts’ vote on the tax clause. On that one vote on that one issue, Segal overemphasized the role of ideology, but for every other vote on the other issues, he was correct. Bailey and Maltzman overemphasized the influence of legal precedent and underestimated the role ideological preferences would play, particularly among Kennedy on all aspects of the ruling and Roberts on the commerce clause issue.

Many of the journalists and legal scholars, including Adler, Tribe, Sacks, and Kerr (2010), emphasized judicial restraint and predicted that, above and beyond issues related to commerce clause precedents, the Court would not strike down a law of this political magnitude, especially the president’s signature domestic achievement. That part of the reasoning underlying the upholding of the ACA arguably characterized Roberts’ vote (I return to this issue below). Furthermore, Sacks appears to be correct, to an extent, when he argues that the “battle this time is likely to be an intra-conservative conflict between the economic libertarianism underlying the mandate’s challenge and the traditional principles of judicial restraint that have defined right-wing jurisprudence for more than a half-century…. [I]nvalidating a sitting president’s signature legislative victory on commerce clause grounds is freighted with deeply unpleasant institutional memories both for the court and the conservative legal movement.”

While the commerce clause part was not quite right, Sacks anticipated the tension between Roberts and his four conservative colleagues. It is worth noting that Roberts had already demonstrated his deference to federal power, particularly in U.S. v. Comstock, which recognized broad congressional power under the N&P clause (see Kerr’s analysis of this topic). Kerr (in 2010) and Adler, while correct that the Court would uphold the ACA, seem to have overemphasized the extent to which several of the justices would be constrained by issues of judicial restraint and deference to Congress and the president on significant domestic laws. While Greenhouse correctly predicted the outcome, she overemphasized the impact of commerce clause precedent (even more than Bailey and Maltzman), having predicted that the Court would uphold on commerce clause grounds “by a wide margin.” Kerr’s revised prediction in 2011 also overemphasized the impact of commerce clause precedent to about the same extent as Bailey and Maltzman.

Despite some of these errors, most of these forecasts combined prediction with explanation about the rationale underlying the prediction, particularly tying the prediction to theory and the mechanisms underlying the behavior. Even those who incorrectly predicted the outcome still added value. As this exercise has hopefully shown, there is great value in assessing and comparing political forecasts—ones that were both correct and incorrect—after the fact.

Evaluating these forecasts also helps us think about what were the true motivations underlying the justices’ votes—particularly Roberts’. My own opinion is that Roberts got what he wanted: a decision that exhibits judicial restraint (he does appear to favor robust federal power, as evinced in the Comstock decision as well), interprets the commerce clause as not permitting the individual mandate (throwing a bone to the conservative legal movement), and holds that the penalty for not complying with the mandate amounts to a “tax,” which could lay the groundwork for later repeal of the ACA.

Another take on Roberts’ motivation comes from Steven Teles at SCOTUSreport. In the Court’s most high profile cases involving potential clashes with Congress and the president, Teles argues the following:

[A]s an institutional matter justices have some sense of how far they can legitimately push on the political branches, and they make that judgment and then figure out a legal rationale to back themselves up….. Roberts, no doubt influenced by his position as Chief Justice, made the call that he could pull at the seam of the law pretty hard but couldn’t unravel it completely….There is an element in Supreme Court decision-making that can be explained by statesmanship rather than jurisprudence…. On no really important aspect of jurisprudence did Roberts actually break from his conservative brethren, but he did make a different political judgment than they did—not on what the Court could get away with, but what was really appropriate for it to do on a matter of such great policy significance.

Teles’s argument suggests a sort of post-hoc rationalization process of decision making akin to the attitudinal model (Segal and Spaeth) but tweaked to fit broader separation of powers issues. That is, stake your position on what is the best judgment given the situation, then cloak that judgment around a legal rationale that makes enough sense to make it look as if one was guided in a bottom-up, law-driven decision process. From this point of view, maybe Roberts, who felt it was most appropriate to uphold the ACA, really did feel that the mandate was constitutional under the commerce and N&P clauses, but he felt he had to go with a less sweeping legal justification to uphold it—in this case, the tax clause—than either of those clauses in order to appease conservative audiences. One thing we do know for sure: just as the “switch in time” still evokes a great sense of scholarly intrigue about the true motivations of another Justice Roberts—Owen Roberts—some 75 years later, scholars and Court observers will be analyzing Chief Justice John Roberts’ vote on the ACA case for years to come.

FORECASTS BY POLITICAL SCIENTISTS

I.  Michael A. Bailey (Georgetown University) and Forrest Maltzman (George Washington University); prediction made at The Monkey Cage on November 21, 2011

A.  Overall case disposition and vote split: Court will uphold ACA; 6-3 (with Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan voting to uphold) or 7-2 (Alito voting to uphold as well)

B.  Constitutionality of the Individual Mandate under:
1. Commerce clause: constitutional (implied from prediction); “we are persuaded that the Wickard v. Filburn and Gonzales v. Raich are [the] most clearly relevant [precedents].” 6-3 or 7-2 (same vote splits as above)
2. Necessary and proper clause: no prediction given
3. Tax clause: no prediction given

C.  Severability: no prediction given; implied that entire ACA will be upheld

D.  Rationale: deference to commerce clause precedents; “we are persuaded that the Wickard v. Filburn and Gonzales v. Raich are [the] most clearly relevant [precedents].” “Policy motivations won’t be irrelevant, but score this one for law;” prediction is reflective of the argument in the authors’ book, The Constrained Court.

II.   Jeffrey A. Segal (Stony Brook University); part of prediction reported in Newsday on March 25, 2012; other parts reported in talks given at various universities

A.  Overall case disposition and vote split: Court will strike down the ACA; 5-4, with Roberts, Scalia, Kennedy, Thomas, and Alito voting to strike

B.  Constitutionality of the Individual Mandate under:
1. Commerce clause: unconstitutional; 5-4, with Roberts, Scalia, Kennedy, Thomas, and Alito voting to strike
2. Necessary and proper clause: unconstitutional; 5-4, with Roberts, Scalia, Kennedy, Thomas, and Alito voting to strike
3. Tax clause: unconstitutional; 5-4, with Roberts, Scalia, Kennedy, Thomas, and Alito voting to strike

C.  Severability: no specific prediction given

D.  Rationale:  ideological voting, in accord with the attitudinal model, for which Segal (co-author, with Harold Spaeth, of The Supreme Court and the Attitudinal Model Revisited) is a prominent proponent.

III.   Michael Evans (Georgia State University); prediction made at The Monkey Cage on March 29, 2012

A.  Overall case disposition and vote split: Court will strike down the individual mandate; 5-4 with Roberts, Scalia, Kennedy, Thomas, and Alito voting to strike

B.  Constitutionality of the individual mandate under:
1. Commerce clause: unconstitutional, 5-4 with Roberts, Scalia, Kennedy, Thomas, and Alito voting to strike
2. Necessary and proper clause: no prediction given
3. Tax clause: no prediction given

C. Severability: no prediction given; only making prediction on individual mandate

D.  Rationale:  Based on questioning at oral arguments; research shows that justices “tend to direct more questions and words at the side they eventually vote against….  Justices generally do not play ‘devil’s advocate’—asking questions to help the side they support—but, rather, attempt to expose what they see as the weaknesses of the other side’s arguments.” Prediction is based on “relative number of words uttered by each Justice to the two sides regarding the constitutionality of the individual mandate under the commerce clause.”



FORECASTS BY LEGAL SCHOLARS

I.  Orin Kerr (George Washington University); prediction made at The Volokh Conspiracy on March 22, 2010; revised prediction made at SCOTUSblog on August 11, 2011

A.  Overall case disposition and vote split: 2010: “In the unlikely event a [circuit] split arises and the Court does take [the case], I would expect a 9-0 (or possibly 8-1) vote to uphold the individual mandate.” 2011: “the mandate will be upheld by a vote of anywhere from 6-3 to 8-1” (predicting Roberts and Kennedy will uphold, and less certain about Scalia and Alito).

B.  Constitutionality of the Individual Mandate under:  2010:  “there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power.”
1. Commerce clause: 2011: constitutional, “by a vote of anywhere from 6-3 to 8-1.”
2. Necessary and proper clause: no specific prediction given
3. Tax clause: no specific prediction given

C.  Severability: no prediction given

D.  Rationale: 2010: “there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power.” 2011: deference to commerce clause precedent.



II.  Jonathan H. Adler (Case Western Reserve University); prediction made at The Volokh Conspiracy on March 23, 2010

A.  Overall case disposition and vote split: Court will uphold the individual mandate

B.  Constitutionality of the Individual Mandate under: similar implication as Kerr’s 2010 reasoning
1. Commerce clause: no prediction given
2. Necessary and proper clause: no prediction given
3. Tax clause: no prediction given

C.  Severability: no prediction given

D.  Rationale: “Federal courts have been quite reluctant to strike down federal statutes on enumerated powers grounds for quite some time, and the individual mandate is a larger and more consequential piece of legislation than those invalidated by the Rehnquist Court…. It is much easier for a court to invalidate a small piece of symbolic legislation than a major social reform.’



III.  Laurence H. Tribe (Harvard University); prediction made on MSNBC on June 26, 2012

A.  Overall case disposition and vote split: Court will uphold ACA in its entirety; Roberts in majority, writing majority opinion

B.  Constitutionality of the Individual Mandate under:
1. Commerce clause: no prediction given
2. Necessary and proper clause: no prediction given
3. Tax clause: no prediction given

C.  Severability: “upheld in its entirety”

D.  Rationale: respect for legal precedent and judicial restraint; upholding the ACA will provide a “partial antidote” to cases like Bush v. Gore and Citizens United and others, where the Court “has reached further than it needed to…to grab onto issues that were in the middle of the political battle and then often not to act in particularly judicious way…”



IV.  David Schultz (Hamline University; both a law professor and political scientist by training); prediction made at Schultz’s blog on June 27, 2012

A.  Overall case disposition and vote split: “I say either 6-3 to uphold the individual mandate (Roberts majority opinion) or more likely 5-4 to strike down the individual mandate on commerce clause grounds (maybe upheld on taxing authority). I say 55-45 probability that the mandate is gone.”

B.  Constitutionality of the Individual Mandate under:
1. Commerce clause: unconstitutional; 5-4
2. Necessary and proper clause: no prediction given
3. Tax clause: “maybe upheld on taxing authority”

C.  Severability: mandate struck down, everything else upheld

D.  Rationale: “Precedent is not in favor with this Court.”

FORECASTS BY JOURNALISTS

I.  Mike Sacks (Huffington Post); prediction at HuffPost on March 18, 2012

A.  Overall case disposition and vote split: Court will uphold ACA

B.  Constitutionality of the Individual Mandate under:
1. Commerce clause: constitutional, based on past commerce decisions
2. Necessary and proper clause: no prediction given
3. Tax clause: no prediction given

C.  Severability: no specific prediction given; implies that entire ACA will be upheld

D.  Rationale: judicial restraint, commerce clause legal precedent; “The battle this time is likely to be an intra-conservative conflict between the economic libertarianism underlying the mandate’s challenge and the traditional principles of judicial restraint that have defined right-wing jurisprudence for more than a half-century…. invalidating a sitting president’s signature legislative victory on commerce clause grounds is freighted with deeply unpleasant institutional memories both for the court and the conservative legal movement.”



II.  Linda Greenhouse (New York Times; Yale Law School); prediction made at New York Times on March 21, 2012

A.  Overall case disposition and vote split: Court will uphold ACA; “by a wide margin.”

B.  Constitutionality of the Individual Mandate under:
1. Commerce clause: constitutional; “by a wide margin”
2. Necessary and proper clause: no prediction given
3. Tax clause: no prediction given

C.  Severability: no prediction given; implied that entire ACA will be upheld

D.  Rationale: legal precedent; “The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there….  Maybe the court will agree with that assessment, and maybe it won’t. I think it will, by a wide margin….  If the commerce power extends to backyard marijuana growing [Gonzalez v. Raich] (as it did to backyard wheat growing in the famous New Deal case of Wickard v. Filburn), the notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.”



III.  Jeffrey Toobin (CNN, The New Yorker); prediction made on CNN (see here as well) on March 27, 2012

A.  Overall case disposition and vote split: Mandate “looks like it’s going to be struck down.”

B.  Constitutionality of the Individual Mandate under:
1. Commerce clause: no prediction given
2. Necessary and proper clause: no prediction given
3. Tax clause: no prediction given

C.  Severability: no specific prediction given

D.  Rationale: oral arguments and Solicitor General Verilli’s “poor performance”



IV.  Tom Goldstein (co-founder and publisher of SCOTUSblog.com; appellate lawyer; law professor); prediction made at SCOTUSblog on June 27, 2012

A.  Overall case disposition and vote split: Mandate will be upheld; challenge to the Medicaid expansion will be rejected; no prediction on vote split, though he predicts Roberts will write majority opinion

B.  Constitutionality of the Individual Mandate under:
1. Commerce clause: no prediction given
2. Necessary and proper clause: no prediction given
3. Tax clause: no prediction given

C.  Severability: no specific prediction given; implies that entire ACA will be upheld

D.  Rationale: no rationale given

 

{ 5 comments }

Jeffrey Segal July 19, 2012 at 3:15 pm

I should add that in February 8, 2011, Tribe wrote in the NYTimes that the law would be upheld 8-1 on commerce/taxing.
http://www.nytimes.com/2011/02/08/opinion/08tribe.html?_r=1
“(t)he predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

“Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?”

Brandon Bartels July 20, 2012 at 10:18 am

A prediction I just learned about that is as close to being correct as I’ve seen is by Tom Keck (Syracuse University): http://www.guardian.co.uk/commentisfree/2012/jun/27/us-supreme-court-rule-obamacare?INTCMP=SRCH

The prediction was made the day before the decision was handed down. Keck writes:

“My prediction is that the court upholds the entire Affordable Care Act, by a 6-3 vote. In doing so, the decisive justices will suggest that a straightforward government mandate that all individuals purchase health insurance would be unconstitutional, but that the ACA’s mere imposition of a tax penalty on individuals who fail to obtain health insurance is constitutionally legitimate.”

Michael Bailey July 20, 2012 at 1:09 pm

Forrest and I definitely didn’t predict Roberts’ Commerce Clause (even though we did predict Roberts would write and limit Commerce Clause doctrine – something Brandon ignored!! Where’s the love?!).

However, I don’t think it’s right to say that b/c “constrained court” view got 1 prediction right and “attitudinal” view got one prediction that the two approach do equally well in explaining the case. The attitudinal view says that it is all ideology. That just wasn’t so on the ACA case; simply put the decision is very hard to explain without going beyond ideology.

I do agree with Jeff that many overdid the “constrained court” view, as there was no shortage of ideology in this decision.

It’s been interesting to see how focal predictions are even when they are not the focus of what political scientists do. Political scientists typically test theories. Lots of folks have said court is about more than ideology and Forrest and I went and looked for evidence. We could only look at some types of non-ideological behavior (precedent, deference, free speech, sop deference to Congress, deference to SG) b/c these were the only things we could measure within our framework. We went to great lengths to say that there could be more — lots more — and if our focus were prediction then the constrained court approach would say you have to look at the particular non-ideological elements that come into play. Even then, I’m not sure I would have “called” the tax angle Roberts took, but the constrained court approach would at least one to be digging around in the right part of the garden, while the attitudinal approach would quit after looking at ideology.

Brandon Bartels July 20, 2012 at 3:02 pm

Hi Mike — There is certainly an enormous amount of value to your and Forrest’s prediction: (1) you correctly predicted the disposition, (2) you correctly anticipated that at least one of the conservative justices would buckle and join the liberals in upholding, and (3) most importantly, you connected your “prediction to theory and the mechanisms underlying the behavior” of the justices (a point I make in para. 9). I wanted to elaborate on that third point more, but I didn’t because of space limitations; your prediction certainly exemplified this virtue.

My point was just that while you essentially got the outcome right, the foundations on which you thought it would occur — deference to commerce clause precedents — were less than accurate. Of course, nobody got the prediction “exactly right.” My goal was to highlight both the “truths” AND flaws of EACH forecast in an effort to understand the foundations and motivations underlying the decision in general. I think there is a great deal to learn about Supreme Court decision making from EACH forecast (particularly in comparison with one another) regardless of whether they were right or wrong on various components (as I point out).

You say: “I don’t think it’s right to say that b/c ‘constrained court’ view got 1 prediction right and ‘attitudinal’ view got one prediction that the two approach do equally well in explaining the case.” I actually don’t claim that they do “equally well” in my post, though perhaps you’re just raising this as an issue of interest, which I think makes this such an extremely interesting exercise. Some got the case outcome correct while the reasoning wasn’t borne out completely by the actual outcome, while others got the outcome incorrect but there was a great deal of accuracy underlying their rationale. What makes Jeff Segal’s prediction so valuable (despite being incorrect on the case disposition) is how he correctly anticipated that the conservative justices would NOT be constrained by commerce clause precedent (which he was correct on) or concerns over judicial restraint and the “risk” involved with striking down the president’s signature domestic achievement (which he was ultimately wrong on with respect to Roberts, if you believe that Roberts voted to uphold due largely to judicial restraint, but right on for the other four conservatives). As I talk about, so many of the journalists and legal scholars really believed that there was just no way the Court would ever strike down the ACA, and that this seemed like such an open-and-shut case on commerce clause grounds alone, but if that didn’t hold sway, judicial restraint would save the day. So Jeff comes out looking good on the aspect that the no, the conservatives would not defer to those commerce clause precedents and four out of the five appear not to be constrained by judicial restraint. But there was some constraint here, no doubt, particularly on the part of Roberts, just not apparently on the grounds of commerce clause precedents (though one could perhaps see a case for that if take the Teles argument a few steps further, as I speculate on toward the end).

Finally, you say: “even though we did predict Roberts would write and limit Commerce Clause doctrine – something Brandon ignored!! Where’s the love?!” Just to quote from your original prediction: “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). ” Even though it’s not explicit there that you predict Roberts will be majority opinion author, I do think it is implicit. (Though in the Comstock decision, which was an N&P clause case that recognized broad congressional power, Roberts assigned the majority opinion to Breyer — see Kerr’s post on this that I refer to). I didn’t address that specific passage from your prediction because you didn’t really elaborate on what you meant by “cabins the commerce clause.” Ultimately, you were predicting that Roberts would vote that the mandate was constitutional under the commerce clause. I guess there would have been a way to limit the commerce clause interpretation somehow while still ruling that the mandate was permissible under it, but of course, Roberts ultimately voted that the mandate was unconstitutional under the commerce clause. Of course, it’s always possible I did not interpret that passage in your prediction in the way that you intended.

Mark July 20, 2012 at 6:45 pm

What this points out is the unfortunate position that non-liberals are in when it comes to the Supreme Court. The “conservative” justices (except for Thomas on occasion) feel generally bound by doctrines of either judicial deference, ruling on as narrow a ground as possible and following precedent, including the New Deal and balancing tests, even if they feel uncomfortable about it.
The liberals feel no such constraints given “living” Constitution theory (or as Breyer characterizes it “active liberty”). Since the balancing tests and New Deal precedents already run in their favor by allowing them to ignore certain liberties they can more easily align their policy priorities with their judicial decision making and they are more likely to overrule precedent or simply ignore they are overruling it (as in Boumedianne).
It means that liberal victories have a greater chance of being permanent while conservative ones may just last till the mixture of justices change or the next relevant case comes up.

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