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."
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.
The opinion, however, lays out five factors, several of which narrow its scope.
"The opinion in Comstock was a very narrow expansion of the power to incarcerate people for violating federal law," says Randy Barnett, a law professor at Georgetown University Law Center who is representing the small business group challenging the health care law. "It narrowed the scope of the holding in ways that would distinguish that law from the health care law. For example, there was an explicit opt-out for states in Comstock, there is no opt-out for states for the individual mandate."
Lower Court rulings
Supporters of the law were ecstatic when two lower court judges who are highly respected in conservative circles voted to uphold the law in other cases challenging the individual mandate. While the Supreme Court will hear a challenge from the 11th Circuit Court of Appeals, several other lower courts heard similar challenges to the law.
"Call this mandate what you will-an affront to individual autonomy or an imperative of national health care-it meets the requirement of regulating activities that substantially affect interstate commerce," wrote Federal Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit, in voting to uphold the constitutionality of the mandate.
Sutton, who was appointed to the bench by George W. Bush , is a former law clerk to Scalia, and he has a sterling reputation among conservatives. He was the first judge nominated by a Republican president to vote in favor of the mandate when a similar case came before him.
Likewise, Laurence H. Silberman, of the US Court of Appeals for the DC Circuit, a long-time friend of Justice Clarence Thomas, wrote, "The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local-or seemingly passive-their individual origins."
Lawyers for the Obama administration mention both opinions frequently in their briefs arguing that the mandate should be upheld.