Balkinization  

Monday, June 25, 2012

Who will write the final opinions of the Term (and what will they say?)

JB

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.


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