Survey of legal experts shows majority believe mandate will be struck down
Court watchers are no more accurate than other pundits, but considering the fact that most observers believed it was impossible for the mandate to be overturned, this is a significant change.
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 particularly interesting:
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.
Whatever the decision, it will probably be 5-4, unless someone like Breyer surprises us. Roberts desperately wants that 6-3 or 7-2 decision so I am guessing that the ruling will be a narrow one, striking down the mandate but leaving most of the law intact.
That won't be good because Obama will continue to implement that legislation until the day he leaves office. A way must be found to repeal the entire bill - a tall order given that the Democrats will either be narrowly outnumbered or still control the senate next year.