Monday, March 12, 2012

Two weeks and counting: let the previews begin

We are now inside 14 days until the start of arguments, and the major media outlet previews have already begun. Today, Adam Liptak of the New York Times has this front-page article, which focuses on Chief Justice Roberts. Liptak's essential thesis is that the Chief will almost certainly be in the majority, regardless of the outcome. Interestingly, he writes that while the Chief could be part of a 5-4 majority to invalidate the ACA, he would only join a majority to uphold it if another Republican appointee were with him:
"The consensus among scholars and Supreme Court practitioners is that Chief Justice Roberts is unlikely to add the fifth vote to those of the four justices in the court’s liberal wing to uphold the law. But he is said to be quite likely to provide a sixth vote should one of the other more conservative justices decide to join the court’s four more liberal members."
I, too, tend to think the Chief is the swing vote. But I also think it possible Roberts might join the four Democratic appointees to uphold the Act with a 5-4 majority.

Also of note in today's Times is this op-ed from Fourth Circuit Judge J. Harvie Wilkinson, an esteemed jurist who came close to being nominated for the Court on a couple of occasions. As relevant to the ACA, Wilkinson opines that 
"[i]t is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one."