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It's March Madness!

March 22, 2012

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Yep, that’s a shameless bid to appear higher on Google search results, but it’s also a pretty good metaphor for what’s happening in Washington in advance of the Supreme Court oral arguments on the Affordable Care Act–due to be heard March 26, 27 and 28.  Although speculation about how the Justices may rule has been going on for months, the gambling has reached a fever pitch.

Next week is to Court Watchers as the Final Four is to legions of NCAA Division 1 basketball fans: The brackets have been completed; it’s just a question now of who will come out on top.

Alicia Ault/IMNG Medical Media

Conventional wisdom has the Supreme Court splitting along perceived “party lines” in a 5-4 vote either in favor of upholding the law, or against it.

But with the Justices taking on three separate, major issues within the law, Washington wonks, soothsayers, and legal eagles have gone into a frenzy of handicapping. Not a day goes by without a backgrounder or briefing that professes to have the best read on the tea leaves.

The Court, as is its wont, has shied from the limelight. Until today, it had not even determined how it would accommodate the legions of journalists (myself included) who will descend upon the courtroom to cover the historic arguments. Details are still being worked out, but one thing was not going to change: the Court has steadfastly refused to allow audio or video broadcasts of the proceedings. (Which means there cannot be any contests requiring a shot every time the challengers’ attorney, Paul Clement, utters “individual mandate.”) The Court is even banning–heaven forbid–cellphones. That means no pithy Tweets on Justice Clarence Thomas’ enduring silence.

This morning–at a briefing sponsored by Politico–came new predictions from an estimable panel of D.C. insiders: former U.S. Solicitor General Walter DellingerNeal Katyal, Al Gore’s co-counsel at the Court in Bush v. Gore,  Tom Goldstein, a former Court clerk and publisher of Scotusblog, Kevin Walsh, a former clerk to Justice Antonin Scalia, and Nina Totenberg, the veteran Court correspondent for NPR.

Alicia Ault/IMNG Medical Media

Walter Dellinger, Tom Goldstein, and Neal Katyal

The Justices to watch, said Ms. Totenberg: Anthony Kennedy and Chief Justice John Roberts. They are both widely considered swing votes. Some have also have put Justice Scalia in that camp, “which I personally think is a crock,” Ms. Totenberg said. Mr. Katyal said that Samuel Alito could also be “in play.”

Will politics come into play? Justices “have a grasp of politics that defies imagination in terms of its inaccuracy,” said Ms. Totenberg, who, like the others discounted the idea that the Justices would be influenced–or motivated–to vote in one direction or another based on the prevailing political winds.

The panel was unanimous–except for Ms. Totenberg, who recused herself from making a wager–in its opinion that the Court would uphold the law, most likely in its entirety.

Mr.  Goldstein said he could not effectively imagine a victory by the law’s challengers. If the Justices threw out the Act, it “would lead to probably an array of attacks on different parts of the federal regulatory state because for the first time you would have had five justices that take very seriously limits on congressional power,” he said.

By the end of next week, the Court will likely hold one closed-door conference and a series of votes, said Mr. Walsh.

He and the other panelists went out on a limb, saying that the 5-4 prediction may no longer hold.  Mr. Goldstein said it could even be a 6-3 or 7-2 ruling upholding the law.

So who will write the opinion, expected to be issued in June? Mr. Dellinger predicted that it would be Justice Roberts. Mr. Goldstein, however, said this might be the rare case where the Court issues a per curiam opinionthat is, written in the name of the Court, rather than by any of the Justices. Interestingly, Bush v. Gore was a per curiam decision.

What is your opinion?



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