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6-3 Decision Upholding The ACA
On October 20, a man—probably drunk—walked by a betting booth in Las Vegas and placed $100 on the St. Louis Cardinals to win the World Series. The Cards at the time were 10.5 games out of first, and 125-to-1 odds. They also won, of course, after what sportswriters refer to as "some bullshit," and Drunky McDrunkistan was $125,000 richer.
Point being, I'm standing by my original prediction that the Court will rule 6-3 in favor of the ACA. I think Kennedy will scribe his own limiting principle, either the Mandate as a Tax or something else, lest he and the conservative court doom any chance of health care reform on this planet. That's five votes. But John Roberts knows full well that this is the most important case of his tenure as Chief Justice. He came into the Court several years ago proclaiming a desire for more consensus decisions, something upon which he has definitely not delivered. Roberts does not want to let the ACA pass or die on a 5-4 decision, which means he's joining whichever side has the votes. It's not uncommon for a Chief Justice to join the winning side for consensus' sake; in fact, some believe Roberts joined the four liberal justices on Monday's ruling over SB 1070 so as to avoid a split vote.
It's all the more likely given the rampant speculation that Roberts is writing the decision himself. Given that any decision on the ACA is monumental, it's impossible to read the tea leaves on Roberts' penning of the decision (if he is in fact doing it). On the one hand, if the Court were to strike down the ACA, it would be huge rejection of congressional and presidential authority that would chill lawmakers for years—something Roberts would want to write himself, as he would be responsible for the dearht of legislation following the decision. On the other hand, when Kennedy is a swing vote, he tends to write the decisions. If he were the only one going over to the side of the ACA, the decision would he his to write. If he's not, that could mean that Roberts followed him over, making for a 6-3 decision.
It's a longshot, but so were the Cards.
Bonus: Why Was Scalia So Mad On Monday?
Court observers noted that Anton Scalia was spitting, velociraptor mad on Monday. As in, mad EVEN FOR SCALIA. Here's a pretty harrowing rundown of what it felt like to be in the courtroom with him as he spat out his decision on Arizona's SB 1070—yes, the decision in which he compared undocumented immigrants to freed slaves, that one, which was apparently even more vituperative when red aloud.
Could Scalia have been so angry because he lost the case? Possibly. Could have been irked over the rejection of mandatory life sentences that the Court handed down on Monday as well. All likely explanations.
But Scalia as pissed pissed, far beyond what anybody had seen from the pugnacious judge before, and beyond what seems reasonable in response to the cases he'd lost that day. The immigration ruling wasn't great for Federalism, but it didn't throw Scalia's whole legal philosophy out the window either; and as much as this crank probably wholeheartedly buys into his own theories of limited government, I doubt he'd get that angry over the fact that states can kill kids but can't require it.
All that has led to speculation that he's really angry over what's going to happen on Thursday. Fingers crossed.
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