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ITT, I announce my detailed obamacare/scotus predictions
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Date: June 27th, 2012 1:52 PM
The Healthcare Cases
Anti-Injunction Act doesn't bar review, 9-0. Mandate: upheld, 6-3, in an opinion authored by Roberts. The opinion will uphold the mandate under the Commerce power, not N&P, as a regulation of means of payment for a service that everyone buys. Much will be made of the uniqueness of healthcare/health insurance, and the point that the difference between requiring insurance at the point of sale/care and a purchase of insurance prior to obtaining care is just a matter of timing. Breyer will concur in the judgment, arguing that (A) the mandate could be upheld under N&P as necessary to make the regulations of insurers work, (B) the majority's limitations on mandates are too narrow. RBG will join that opinion in full; Kagan and Soto may join no part of it, or just part A. Scalia will write a very angry dissent, taking Breyer to task (it's not proper) and taking Roberts to task for creating what he'll say is an artificial rule that's entirely of the Court's creation and will break down over time. Alito will write a better dissent, also honing in on the majority's line between permissible mandates and impermissible ones. Thomas will write a very broad dissent that will be unresponsive to anything Breyer or Roberts says, and will say that generations of Commerce precedents are wrong. In years to come, people will look back at the oral argument and be amazed at how badly the commentators misread it.
On the Medicaid expansion, upheld 7-2, with Roberts writing that part of the opinion as well, and Scalia in dissent, joined by Thomas, who may or may not add his own dissent.
Severability's never reached.
Alvarez. Alvarez wins 5-4, in an opinion authored by Kennedy or Kagan. If Kennedy's, it'll be turgid and awful; if Kagan's, it will be the first notable majority opinion of her career. Roberts will write the lead dissent. Alito might add a dissent of his own.
Finally, First American Financial, which could upend standing law but won't. I actually have two predictions as to how this could go down. Both are basically the same on the law; only the result changes. Prediction One. Thomas was originally assigned the majority opinion in this case, but he lost Kennedy. He writes a dissent, saying no injury and no standing. It won't be very good, and I'm not sure if Scalia or Roberts will take the time to chime in with dissents of their own. I think one of them probably does. Kennedy writes an opinion for himself alone. He says that being denied a right to a kickback-free-transaction is, itself, an injury. The four liberals, in an opinion authored by Breyer, say that Congress can presume injury in fact (worse price, worse service) and that the courts have to abide by that presumption. Prediction Two. Thomas writes a plurality opinion saying there's no standing. Soto (writing) and Kagan concur in the judgment, writing that Congress can presume injury, but only in states where the price of title insurance varies. In Missouri, it's fixed, so the presumption of economic harm makes no sense in this case. Breyer (writing) and Ginsburg dissent, saying that the presumption applies even here (worse services or something). Kennedy dissents on his "kickbacks are injuries" theory and says he disavows everything Soto and Breyer say. The end result - the Court rejects 5-4 the presumed injuries proposition, but holds that there is standing under RESPA w/o a showing of injury of fact if you're in a state that doesn't have fixed title insurance rates. No broader implications for standing under other statutes. |
Date: June 27th, 2012 1:56 PM |
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Date: June 27th, 2012 2:04 PM |
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Date: June 27th, 2012 2:06 PM |
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Date: June 27th, 2012 2:16 PM |
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Date: June 27th, 2012 2:18 PM
(Pumo authoritatively speaking for Chief Justice John Roberts on the internet)
I think we're /thread here. |
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Date: June 27th, 2012 2:20 PM |
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Date: June 27th, 2012 2:23 PM
I don't disagree with your suggestion about what Roberts probably thinks about AA, nor do I (strongly) disagree re: your conclusion about how Obamacare could go down.
I just think it's strange and retarded to try to connect the two, or to suggest that there is any reason to suspect that Roberts is considering the former in casting his vote re the latter. |
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Date: June 27th, 2012 2:26 PM |
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Date: June 27th, 2012 2:15 PM
Yeah bro, taking down Affirmative Action programs is obviously a much bigger deal from both a practical and theoretical perspective than restoring some semblance of sanity to the Court's laughable CC jurisprudence and keeping the structural concept of federalism on life support for at least a little while longer.
Let me ask you a question: are you retarded or do you just pretend to be on the internet? |
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Date: June 27th, 2012 2:17 PM
also, a restriction on mandates wouldn't "restor[e] a semblance of sanity" to CC jurisprudence; it'd be a restriction on something that Congress has only done once, ever, changing absolutely nothing about CC jurisprudence as it stands today |
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Date: June 27th, 2012 2:18 PM
No, because he's not retarded. This decision could come down either way re: mandate, but it won't be because Roberts is saving up his life essence to give a more massive facial to Grutter. That's just dumb. |
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Date: June 27th, 2012 2:20 PM |
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Date: June 27th, 2012 2:22 PM
So your argument basically comes down to "I think Roberts will vote to uphold because he buys the government's argument."
I don't think that's implausible.
I do think that's slightly different than saying "Roberts will vote to uphold because he is already plotting his future takedown of Title VII/AA programs", which - true or not - I think is irrelevant to this analysis. |
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Date: June 27th, 2012 2:25 PM |
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Date: June 27th, 2012 2:27 PM
Then I change my position to "good thread, decent prediction, I hope you're wrong." |
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Date: June 27th, 2012 2:28 PM |
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Date: June 27th, 2012 2:30 PM
I suspect this as well for the reasons you just cited, but I will be seriously pissed if Thursday rolls around and Obamacare/First Am both come out fucked. What a shitty way to end the term. |
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Date: June 27th, 2012 2:36 PM |
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Date: June 27th, 2012 2:07 PM |
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Date: June 27th, 2012 4:50 PM |
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Date: June 28th, 2012 10:00 AM |