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“Even if they reason backwards, they have to hate this health care law to then stick their neck out and strike it down, because the court is going to take a real hit in terms of its institutional integrity,” said Friedman, who wrote about the popular will's effect on the court in his book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.
Friedman said the political turmoil that would ensue from striking down the law would make Citizens United and Bush v. Gore “look like a picnic.”
He predicted that the court’s integrity would of particular concern in this case to the chief justice, for whom the decision will be one of several that inevitably define his tenure.
“It would be bad to have a 5-4 decision here in either direction,” Friedman said. “Bad for the court and bad for the country. And I think that there are justices on the court, in particular the chief justice, who understand that and would be reluctant to have the case come down quite along that divide.”
A 5-4 decision, one that rests on Kennedy's reasoning, would be a lightning rod for political criticism of the court, and could leave the constitutional questions unsettled too. One possible way for the court to avoid such an outcome would be simply not to address the most divisive aspects of the health care law.
"If there's going to be a majority opinion sustaining this, and there really is some real institutional credibility to be gained from having it not be a closely ideological vote, given the current doctrine that does really support it, I think one can say, ‘Look, as a matter of logic, this is constitutional under current doctrine,’ and not get into some of the issues that have more of an ideological component,” said Metzger.
Metzger said the court could follow the example set by some of the appellate judges who have ruled to uphold the law, including three notable conservative judges: Jeff Sutton of the Sixth Circuit, and Brett Kavanaugh and Laurence Silberman of the D.C. Circuit.
"Those are three really, really smart judges,” said Metzger, who predicted that Sutton’s and Silberman’s opinions that the law is clearly constitutional under the Commerce Clause could carry particular weight with the court.
"It's not just the authors, it's also what the authors have to say,” said Siegel, referring to what he said were “very good opinions on the merits.”
“[Silberman] wasn't just reasoning begrudgingly saying, ‘Look, we've got to follow the court's precedent, the court's precedence dictates this outcome,’" Siegel said. "He seemed to be speaking in his own voice as well, particularly at the end, when he said Congress has to be free to forge national solutions to national problems. So it’s not just who wrote them, but what they say.”
Not that a justice like Scalia would need ideological cover either way to do what he pleases. Siegel, who spent some time with Scalia this summer at a Duke program at the University of Geneva, doesn’t expect him to be coaxed or cowed by the lower court rulings.
"This is not his first rodeo,” said Siegel. “He is very set in his views. I don't think he's going to need the cover of conservative judges in order to uphold this. I think he's going to call this the way he sees this.”
Precedent notwithstanding, the court is essentially starting from scratch when it comes to the idea of a mandate, and whether the federal government can actively compel people to buy insurance.
“I don't think there's any serious argument that commerce isn't being implicated, so it all comes down to an active-passive distinction that people want to draw,” said Friedman.
“And at some level, everybody's up for grabs for that, because it's completely new. It's all made up. Most of us don't think it gets very far.”