Obviously, everybody seems to think the Court either overturns the mandate or overturns the entire law. Intrade at the moment has a 73% chance of the mandate being overturned.Let me first say: I have no idea. Obviously, I don’t know, like everyone else doesn’t know. But unlike some other cases, I don’t even feel like I have the tools to speculate intelligently. Precedent might normally be a good scaffolding on which to hang a judgment. But this seems much less about precedent than how two specific men see themselves, what their self-conceptions are, what their deepest ambitions are: — John Roberts and Anthony Kennedy. Whose history books do they care about their record in?
I feel confident that’s what it comes down to: but I have no real read on either guy. So, again, I just don’t know.
But this morning I heard a piece of scuttlebutt that made me think people may have it really wrong. Add to that that our chief congressional correspondent Brian Beutler has being saying since the oral arguments — albeit with a pretty low level of confidence — that he thinks it’ll be 6-3 upheld.
And tonight I see that Tom Goldstein of SCOTUSBlog thinks — everyone else’s certainty notwithstanding — that the mandate will be upheld. He also says that he thinks Roberts will write the opinion, which I think basically requires a 6-3 decision, as Brian predicts, though in theory you could have Kennedy be among four dissenters.
I never bet or gamble. If I had to I’d probably bet on some form of ‘Obamacare’ defeat because everyone seems to think they know. But I’ll just leave you with the thought that I think there’s a bigger chance of a surprise than people imagine.