March 29, 2012
Washington, DC – Now that the three days of oral argument are finished, the next step for ObamaCare is the private conference of the Justices scheduled for Friday, during which they will discuss the case. Beginning with Chief Justice John Roberts and moving through the next most senior Justice to the most junior Justice, Kagan, each will give his/her vote on each aspect of the case. Once the majority is determined, the most senior Justice in the majority will assign the writing of the opinion. The writing will begin, with the written opinion expected in June.
No one can be absolutely sure which way the Justices will vote, but based on oral argument, there is good indication that a majority will reject the Anti-Injunction Act applying to this case and, thus, reach the merits. It appears that a narrow majority (5-4) are inclined to strike down the individual mandate. It also appears a majority will find that the individual mandate is so intertwined with the “Guaranteed Issue” (preexisting coverage) and the “Community Rating” (removing the insurance companies’ ability to manage and spread risks) that those core provisions will also be struck down. It remains unclear whether a majority will strike the entire law, although it would be judicial activism for them to, as Justice Scalia said, determine which parts are good and which parts are bad. The entire law should be stricken and Congress should begin again. On the expansion of Medicaid, it is possible a slim majority may strike it down, but it is less clear than the individual mandate. It is hard to predict this part of the case.
There is precedent for the Justices changing their votes during the writing phase. In 1992 following the argument in Planned Parenthood v. Casey, a majority voted to overturn Roe v. Wade. For thirty days the late Chief Justice Rehnquist wrote the opinion. Justices O’Connor and Souter convinced Kennedy to change his vote. At the end of May, he met with Blackmun, who authored Roe v. Wade, to tell him he switched his vote. The opinion was taken from Justice Rehnquist and then became a Kennedy-O’Connor-Souter opinion, upholding the essence of Roe v. Wade. So, we really will not know the ruling until it is delivered in June.
Mathew Staver, Founder and Chairman of Liberty Counsel said: “I am pleased with the overall direction of the oral argument. I pray that a majority of the Supreme Court Justices vote to strike down ObamaCare. ObamaCare has been a constitutional and economic monstrosity. ObamaCare was not written with the Constitution, states rights, or individual liberty in mind. It is time to put an end to this unprecedented assault on our freedom.”