Reason SCOTUS might uphold health care reform

Mike Sacks, writing in HuffingtonPost, analyzes the possibility that the Supreme Court may uphold the individual mandate requirement in the health care reform act.  Arguments won't be heard until later in the spring, but already speculation abounds, not least because of all the controversy over whether Justices Clarence Thomas and/or Elena Kagan should and will recuse themselves.   It seems now that they probably will not.

A report of a Kaiser Family Foundation poll shows that 60% of Americans expect that the justices will be guided more by their ideology than by legal analysis when considering this decision.  In an analysis, particularly of Chief Justice John Roberts' prior decisions, it cites his usual siding with the conservative group but also states that Roberts "is very cautious of the institutional credibility of the Court."

Expanding on this tendency suggests that Roberts, along with Justice Anthony Kennedy, would perhaps be reluctant to go against the court's important principle of stare decisis which, stated simply, means respect for the precedent of previous important decisions.  The longer a prior major decision has stood, and the more subsequent decisions that have been based on it, the greater needs to be the compelling case for overturning the precedent.

Sacks quotes from Roberts' own opinion in the Citizens United case, in which he wrote that precendent:

"should only be overturned when its validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent's underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake." 

A key decision in 1942 established Congress' broad power to regulate interstate commerce, which has been upheld time and again in the ensuing 70 years.   To find the individual mandate in the Affordable Health Care Act unconstitutional, which the suit seeks to do, would require overturning that precedent and seems contra to Roberts' criteria as described above.

Even former Bush Justice Department lawyer John Yoo predicts that Roberts and Kennedy will join the liberal four for a 6 to 3 to uphold the inidividual mandate with as narrow a decision as possible that still does not overturn the commerce clause precedent.

So, yes, there's hope for the survival of what we may proudly refer to as "ObamaCare."   That doesn't have to always be a dirty word.

Ralph