Health Care: Liberals Eye Scalia and Roberts Vote

Washington, D.C. -- With less than two weeks to go before the Supreme Court is scheduled to hear six hours of oral arguments in the case challenging the constitutionality of the Obama Administration's health care law, supporters of the law are eyeing the votes of the more conservative justices.

If, as expected, the four liberal justices vote to uphold the law, the government will need the vote of at least one of the five justices nominated to the bench by a Republican president.

Speculation has gone into overdrive.

Will the Supreme Court divide down ideological lines on the key provision of the law that requires most individuals to buy health insurance by 2014, and leave the decision in the hands of Justice Anthony Kennedy? What will be the impact of the opinions of two conservative lower court judges who voted to uphold the individual mandate?

In advance of any hints that could come out of oral arguments, all bets are on.

Lawyers for the 26 states challenging the health care law, along with a small business group, contend that the federal government is claiming an extraordinary power that is incompatible with the Constitution. They say the health care law will be struck down by the Supreme Court.

But supporters of the law disagree.

Walter Dellinger, former Clinton administration acting solicitor general and a stalwart supporter of the law, has said for months that the decision will be either 7-2 or 8-1.

"I always thought at the end of the day it's going to be upheld, it isn't going to be close and it won't come down to Kennedy," he said in September, during a panel discussion hosted by the American Constitution Society.

Dellinger thinks at least three votes are in play: Kennedy, Chief Justice John Roberts and Justice Antonin Scalia.

Justice Scalia and Medical Marijuana

Supporters of the Affordable Care Act (ACA) point out Scalia's concurring opinion in a medical marijuana case in 2005. In Gonzales v. Raich, the court ruled that federal anti-drug laws could be applied to prohibit the local cultivation of marijuana for medical purposes, which had been authorized under state law.

"Supporters of the ACA have good reason to hope that Scalia will vote to uphold the individual mandate, given his concurrence in Raich," says Elizabeth Wydra, chief counsel of the Constitutional Accountability Center.

In his opinion Scalia wrote, "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce."

Scalia noted, however, that Congress' authority is limited, "Although Congress's authority to regulate intrastate activity that substantially affects interstate commerce is broad, it does not permit the Court to pile inference upon inference, in order to establish that noneconomic activity has a substantial effect on interstate commerce."

Wydra says Scalia's vote in the case will be hard to distinguish from the health care case.

"If Congress can regulate Angel Raich's cultivation of medicinal marijuana in her backyard, for personal use, in full compliance with local law, it is difficult to see how Congress does not have the power to regulate an individual's decision not to purchase health insurance, which puts a $43 billion-a-year drag on our national economy, " Wydra says.

"Scalia said in Raich that Congress may constitutionally regulate non-economic local activity as part of a more general regulation of interstate commerce," she said. "The health care law's individual mandate fits comfortably within that framework."