To make the bold prediction, you need to consider:
A. The judge's voting histories, and
B. The issues presented.
So let's have at it, shall we?
So let's have at it, shall we?
A. If anything approaches a certainty, it is that the decision will not be unanimous, or even close.
Like knowing the sun will rise tomorrow in the east, the conservative RATS (Roberts, Alito, Thomas and Scalia) will vote as a bloc. The four moderates* (Breyer, Ginsburg, Sotomayor and Kagan), who do not routinely vote as a bloc to the extent the RATS do, in this case are very likely to vote together.
That means — as with most controversial cases — the Supreme Court is really just one judge: Anthony Kennedy.**
Justice Kennedy is a staunch conservative, but not an extremist ideologue like the RATS. That means he is, very occasionally, willing to cross the aisle and find some wisdom there. Indeed, upon the retirement of Justice Sandra Day O'Connor, Kennedy assumed her mantle as the Court's "swing voter."
Which is all very nice and reassuring...until you put it in context.
O'Connor was and is an Arizona Republican. (I think we all have a pretty good idea of what that means anymore). She was a party official before she was appointed by Reagan and once on the bench, she almost always voted alongside the odious archconservative Justice Rehnquist. Even so, O'Connor was ever painted as the court's "moderate" during the period that Kennedy was a reliable part of the Rehnquist Court's solid conservative majority.
In short, Kennedy isn't any more a "moderate" than O'Connor was. Indeed, he's actually less of a moderate.
He almost always votes with the RATS on the landmarks. I expect he will again.
B. There are four major issues the Court will decide:
1. Is the expansion of Medicaid congruent with American federalism?
2. Does Congress have the power to require the individual mandate under threat of penalty?
3. Must we wait until the individual mandate penalty is imposed before we decide if it's permissible?
4. If the mandate is impermissible, is the entire law void?1. Conservatives are deeply, deeply besotted with anti-federalism and "state's rights" — unless and until a state is doing something progressive, like permitting medical marijuana, or assisted suicide for the suffering terminally ill, or trying to stop corporations from stealthily buying legislatures. Conservatives also find something uniquely repellant about spending public money on the public — they think public money is better spent on making Iraq safe for Chinese petrochemical interests, covering the losses racked up during their Wall Street friend's periodic gambling benders, subsidizing profitable multinational corporations, and Jesus.
2. Can Congress act in response to a completely manufactured public health financial crisis? Well...duh. Of course Congress can require the individual mandate. But this one really makes conservative heads asplode. They'll invent some shit about the framer's intent that the poor be sacrificed or further impoverished in the interest of health industry profiteering, and Scalia will, no doubt, provide some historical fiction to back up this fanciful notion. I expect this to be the bitterly comedic high point.
3. In reality, they probably ought to postpone on the doctrine of ripeness. But I expect they'll make the point that the penalty is so meager that it's not functionally a penalty at all, and they'll assume as a certainty that many good and righteous godfearing Americans will defy the mandate and take the penalty so they can sue the government while they imagine they're a modern Thomas Goddam Paine. Not that that's a good argument, but they need to get to the place where they can kill the mandate, so they will somehow.
4. The Affordable Care Act doesn't have a severability clause by omission or design. That means if they kill the mandate, the whole thing can collapse like a wet taco. Would the conservative majority invent a severability clause to save any of it? Unlikely in the extreme.
So my crusty prediction is that Obamacare dies tomorrow, but the Court wishes all you uninsured sick people the best of luck, and don't forget to drop by and say "hi" when you're in federal bankruptcy court if you survive. w00t.
I hope I'm wrong. I really do.
America's current laissez-faire, invisible-hand, libertarian objectivist I-got-mine-so-fuck-you approach to heathcare is as immoral as it is economically unsustainable.
Given that the self-styled public servants within our Congress and judiciary feel entitled to participate in reliable, affordable, publicly subsidized healthcare for their entire lifetimes, I cannot fathom how they can also believe the public they serve should just do without, or that we should fend for ourselves against corporations who have every incentive to squeeze us until the money runs out, then walk away leaving us fucked.
If unhealthy Americans got the same level of political concern conservatives provide to nonexistent, unwanted, nonviable fetuses, we could solve our healthcare crisis in a couple of years.
But we won't. And that's what's really sick.
* While "liberal" is the literal opposite of "conservative," our Supreme Court is comprised of political conservatives and moderates, not liberals. It would be impossible to make a serious argument that even the most liberal member of the court (probably Justice Ginsburg) reflects and embodies the values of America's progressive social liberals in the same way any of the court's conservatives profoundly reflect and embody the values of America's very hardline conservatives. She just doesn't. Ginsburg is middle-of-the road at best. America's actual liberals have no representation or voice on America's Supreme Court.
** It also means essentially half of the court is, as usual, completely, utterly wrong. How fully half of such an erudite, elite panel of jurists can be so relentlessly, inexorably incorrect despite having essentially the same legal credentials and viewing the same fact pattern is a mystery I leave for you to untangle, dear reader.