A new survey of former Supreme Court clerks and attorneys that have argued before the court shows a minority of those polled think that the law will be struck down. The clerks break down along their current makeup of the court — “12 clerked for the ‘left’ block of the Court (Justices Breyer, Ginsburg, Kagan, Sotomayor), 21 clerked for the ‘right’ block of the Court (Justices Alito, Roberts, Scalia, Thomas), and 10 clerked for Justice Kennedy,” according to a release from survey sponsors American Action Network and the Blue Dog Research Forum. The survey was conducted by Purple Strategies.
The survey asked the 66 legal experts, “On a scale of zero to 100, what do you believe is the probability that the SCOTUS majority will find the individual mandate unconstitutional?” Combined together, the experts said there was only a 35 percent chance that would happen. If the court would be to find the individual mandate portion of the law unconstitutional, only 27 percent of the experts said that it wouldn’t be either totally or partially severable, with the balance of the majority saying it would be one of the two.
“The only way to strike down the individual mandate would be to overrule decades of precedent going back to the New Deal,” one of the respondants wrote in response to questions. “That’d be a welcome step, in my view, but it’s one that the Court simply won’t take. Justice Scalia gave stare decisis effect to these precedents in the medical-marijuana case (Gonzales v. Raich), and even Justice Thomas’s concurrence in U.S. v. Lopez indicated reluctance to wipe the Commerce Clause slate completely clean.”
