Insider poll: Legal experts now expect Supreme Court to strike down individual mandate

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The Supreme Court will soon announce its ruling on the constitutionality of President Barack Obama's health care law passed in 2010, and for many legal observers who have worked in the court and argued cases before the justices, the federal government's defense of the measure in March did not inspire confidence.

A new insider survey of 58 legal experts conducted after the oral arguments concluded found that most predict that the court will strike down the so-called individual mandate, a central provision within the law requiring that every American purchase a government-approved form of health insurance. The same expert survey was conducted before the hearings began, which found the opposite: Most thought the law would be upheld.

The survey was paid for the American Action Forum, a right-leaning organization and Center Forward, a centrist group, both based in Washington, D.C. It was conducted by Purple Insights, a bipartisan consulting firm. The pollsters received input from former clerks who have worked for justices on both sides of the ideological spectrum: Eleven clerked for traditionally liberal Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, 18 clerked for justices on the right, Samuel Alito, John Roberts, Antonin Scalia, and Clarance Thomas and nine worked for Anthony Kennedy.

Using a scale from 0 to 100, the pollsters asked the 38 former clerks of current Supreme Court justices and 18 attorneys who have argued before the court to rate the probability that the individual mandate provision would be declared unconstitutional.  The insiders provided an average rating of 57 percent, a significant jump from the pre-hearing survey, when the average was just 35 percent.

"This is a fascinating snapshot of how true experts believe the Supreme Court will act on the future of American healthcare," said American Action Forum President Douglas Holtz-Eakin, who served as Director of the Congressional Budget Office under President George W. Bush. "Experts believe the oral arguments revealed significant insights into the court's thinking."

The notion that the entire law would be struck down if the individual mandate is declared unconstitutional received an average rating of 31 percent in the new poll, an increase of four percentage points from the pre-hearing survey. The average prediction that the law would remain even if the individual mandate is removed dropped to 21 percent from 36 percent in the new survey.

"I feel like a dope," one of the experts said in the comments section of the survey, "because I was one f those who predicted that the court would uphold the statute by a lopsided majority--maybe even 8-1. Although you never know, it now appears pretty likely that this prediction was way off."

After observing the justices during the health care hearings, seven out of ten of the experts said they felt the line of questioning "indicated that they were more skeptical about the law's constitutionality" than they expected. No one who participated in the survey said they thought the justices appeared "less skeptical" than they anticipated.

Although none of those polled have precise knowledge of how the justices will rule on the provisions related to the health care law, their predictions--especially given the significant drop on confidence after watching the oral arguments--could foreshadow the fate of the law.

At the latest, the justices will announce their decisions on the health care law on June 28, although it could come earlier.