Health Care: Liberals Eye Scalia and Roberts Vote

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But Carrie Severino, chief counsel of the conservative Judicial Crisis Network disagrees. "The health care case is so novel that no previous precedent is controlling, " she says.

The Raich case and the health care case are different, Severino says. While Raich covered people who were in possession of or growing marijuana, the health care law would affect individuals who choose to remain outside of the health care market place.

"In the health care case the government is arguing that everyone, by virtue of being a legal resident, can be forced to buy a product," she said. "If the government can use the mere fact that you are a citizen to compel you to purchase a product, there is virtually nothing the government couldn't force you to do."

Severino scoffs at Dellinger's prediction. "The conservatives care about the Constitution, the structure and its limits," she said. "They are not going to go along with this simply because the government tells them it's necessary. They are certainly not going to go along with it because the government assures them that it will never take full advantage of the unlimited power it is claiming."

Brian T. Fitzpatrick, an associate professor at Vanderbilt Law School and a former clerk for Scalia says "it is not a slam dunk either way" when it comes to which side Scalia will come down on in the health care law case.

He notes that in two cases, U.S. v. Lopez (1995) and U.S. v. Morrison (2000), Scalia joined in an opinion that said that Congress had exceeded its authority under the Commerce Clause.

"I think he is likely to vote to strike down the individual mandate because it is a new exercise of Commerce Clause power," Fitzpatrick said. "And, in general, he believes that Congress already has too much Commerce Clause power. I think he thinks the mandate is beyond what Congress should be allowed to do."

Chief Justice John Roberts

Bradley W. Joondeph, a professor at Santa Clara Law, says that any calculation concerning Roberts' ultimate vote has to take into account his position at the head of the court and his own legacy.

Joondeph points out that in the next few terms the Supreme Court is most likely going to hear several cases regarding hot button issues, including immigration, voting rights and affirmative action.

"If the Roberts Court ends up ruling in a sort of party line conservative way in almost all of the really controversial constitutional questions of our era, then there's a very real danger that the court will lose legitimacy, at least in the minds of a lot of Americans," he said. "It will look more like a political institution than a legal institution. Those perceptions could be right, wrong or otherwise, but they will shape the prestige of the court."

Joondeph says that to the extent that Roberts is concerned with his legacy, "It's a concern that's wrapped up with preserving the Court as an institution," he said.

Supporters of the law who are searching for tea leaves as to how the chief justice might vote point hopefully to U.S. v. Comstock. Roberts joined the decision written by Justice Stephen Breyer that found that Congress has the power to enact a statute authorizing indefinite civil commitment of convicted sex offenders after their prison sentence has ended.

"Comstock affirms that the court should give significant deference to the way that Congress decides to implement the powers specifically granted to it by the Constitution. Comstock required only a rational relationship between the law and the enumerated power," Wydra says.

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