an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Who will write the final opinions of the Term (and what will they say?)
There are three opinions left for this Supreme Court Term:
First American Financial Corp. v. Edwards, an Article III standing case;
United States v. Alvarez, the "stolen valor" case, about whether a federal statute making it a crime to lie about receiving military medals or honors violates the First Amendment; and
The Health Care Cases, raising challenges to the individual mandate and the Medicaid extension.
My understanding (from Linda Greenhouse) is that all of the Justices have written opinions in the sitting at which First American Financial Corp. v. Edwards was argued with the exception of Justice Thomas. My guess is that he will write that opinion, and the Court will find no Article III standing.
Similarly, in the sitting in which United States v. Alvarez was argued, all of the Justices have written opinions except for Justices Kennedy and Kagan. If either of them writes the opinion, my prediction is that the Court will hold the statute unconstitutional, either completely or in some respect.
That leaves The Health Care Cases. It is everybody's guess that Chief Justice Roberts will write the opinion in the mandate case. The Court could combine all of the Health Care Cases together, in which case Chief Justice Roberts would write all of them in one opinion. What he will say nobody knows.
But there is another scenario. The challenge to the Medicaid extension was generally thought to be weak even after the oral arguments. Kennedy or Kagan (whichever one doesn't write Alvarez) could be assigned to write that opinion, which would probably be 8-1 or 7-2 (upholding the Medicaid extension), and Chief Justice Roberts would write the mandate opinion, which could go either way. This scenario would throw the liberals a bone: Medicaid would be expanded to 133 percent of the poverty line, which would significantly increase the number of Americans with health insurance.
However, if that happened, it would follow that the Court would not strike down all of the Affordable Care Act in the mandate opinion, because it would have just held that the Medicaid extension is constitutional. The Court would then either uphold the ACA, strike down just the mandate, or strike down the mandate and the consumer protection--guaranteed issue and community ratings--provisions.
My track record on predicting these things is pretty lousy. In fact, it's downright terrible. So take these predictions with a grain (actually a mountain) of salt.