Will The Supreme Court Strike Down Parts of the Affordable Care Act? Potential Lessons From Political Science

By Scott Lemieux

The passage of health care reform has led to a considerable amount of speculation about whether the Supreme Court might strike down parts of the legislation.   The most plausible constitutional arguments surround the mandate that people who do not have insurance from another source purchase a policy through regulated exchanges.    How likely is it that the Supreme Court would strike down the centerpiece of the Obama administration's first-term agenda?

Some political scientists have developed models that attempt to explain and predict judicial decision-making.   To oversimplify, there are three major potential explanatory models.    The legal model predicts that judges are primarily motivated by a desire to reach the best outcomes as required by the law.   The attitudinal model predicts that judges are primarily motivated by policy outcomes.   The strategic model also assumes that judges are motivated by policy outcomes, but that to achieve desirable outcomes they will have to make compromises with other judges and also have to consider the possibility of retaliation from other branches.   (A completely sincere opinion that cannot attract the votes of any other justices does little to advance a justice's policy preferences, and an interpretation of a law that Congress overrules also fails to entrench the Court's preferences into law.)

What models might be applicable here, and what do they suggest about the likely outcome?

• It is very difficult for models to capture the ways in which the law affects judicial behavior.   Attitudinalists are quite persuasive that when it comes to Supreme Court votes on the merits, ideology is a good predictor of outcomes.   As the disagreement among legal scholars in the linked post above indicates, the Constitutional text does not settle the issues in this case; reasonable people can disagree about how the constitutional provisions apply.  However, this is not to say that the law is completely irrelevant.   Judges do show a certain reluctance to innovate, and  decision striking down the mandate would be at least somewhat inconsistent with recent precedent.    Since Supreme Court justices can overrule (or disgregard) their own precedents, past cases do not guarantee any future outcome, but they do make some arguments easier to make than others.   
• Although I have certain objections to the attitudinal model, as mentioned above I agree that it works quite well when applied to votes on cases that are ultimately decided by the Sureme Court. In terms of predicting the outcome of a challenge to the ACA, however, this means less than it might appear at first glance.    The model, first of all, says nothing about whether the Court will take the case in the first place.   In addition, in order to succeed a challenge to the law would almost certainly need the vote of Anthony Kennedy, whose record on federalism cases is somewhat mixed and unpredictable.    In a recent landamark federalism case, both Kennedy and his more conservative colleague Antonin Scalia joined the Court's four liberals to uphold the power of the federal government to enforce federal drug laws even if the behavior in question was legal under state law.   Chief Justice John Roberts and Samuel Alito are strong judicial conservatives, but do not yet have an extensive record on these questions.    Apart from Justice Thomas, past decisions do not strongly indicate that any justice would vote to strike down the mandate, but nor would they rule it out entirely.
• Strategic thinking by the judges may work against a decision in two respects.   First, striking down part of such important legislation may invite a political backlash on the part of Congress.   And, second, if the justices are considering policy outcomes striking down the mandate could perversely lead to a more liberal health care policy ultimately being enacted.   On the other hand, the Court does not always act strategically in the sense of avoiding political opposition, and by the time the Court heard a challenge the political context may well be more favorable to conservatives.        

On balance, political science models of judicial behavior would tend to suggest that the Supreme Court striking down the health care mandate is unlikely -- but not necessarily impossible.

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