From the New Republic:
The experts ABA surveyed were unanimous in predicting that the four
liberal justices (Stephen Breyer, Elena Kagan, Sonia Sotomayor, Ruth
Bader Ginsburg) would vote to uphold and that Clarence Thomas would vote
to strike it down. Fifty-three percent said Anthony Kennedy would join
the liberals, but a higher proportion, 69 percent, thought Chief Justice
John Roberts would join the majority. Majorities of about 60 percent
predicted that the other two conservatives, Samuel Alito and Antonin
Scalia, would determine the law is unconstitutional.
. . .A more carefully reasoned explanation for why the law seems likely
(although far from certain) to survive comes from Richard Primus, a
former Ginsburg clerk who is now a professor of law at the University of
Michigan. And it's an interesting explanation, if you're following this
case, because the source of Primus' relative confidence is the very
case that gives so many of the law's defenders anxiety: United States v. Lopez.
The subject of Lopez was a federal law banning gun
possession near schools. The government cited its right to regulate
interstate commerce as justification for the law. A five-to-four
majority rejected that argument, saying that states could handle the
matter on their own. In so doing, the majority, led by Chief Justice
William Rehnquist, established a limit on the commerce clause
power—something the court had not done since the New Deal. Critics of
the Affordable Care Act hope (and advocates of the law fear) that the
court’s willingness to limit the government’s interstate commerce power
in that cause mean it might do the same in this one.
. . . Having already established that the power to regulate interstate
commerce has limits, Primus suggests, they might not feel compelled to
do so again. What’s more, the Lopez decision led to subsequent decisions—most important among them, Gonzales v. Raich—in
which the court specified with more detail the limits of the commerce
power. And the health care mandate falls clearly within them.
In other words, Lopez signaled a willingness to roll ball
federal regulatory economic authority, something that hadn't existed
since the New Deal. But, in this particular case, Lopez might make the justices more comfortable upholding the law.
