November 23, 2011 Leave a comment
Based on various things I’ve read recently, I predicted to my class last week that the Supreme Court would have 6 or 7 votes to uphold the Affordable Care Act. A couple political science scholars of judicial politics perform a nice thorough analysis to come to this conclusion:
We (and many others) think there is more to justices’ behavior than policy preferences. Justices have famously bucked their presumed policy preferences on high-profile cases—such as when Rehnquist supported Miranda rights in Dickerson v. United States based on support for precedent and Scalia supported flag-burners (whom he openly admitted he’d like to see in jail) in Texas v. Johnson based on support for First Amendment speech rights. We show in our book that virtually every justice deviates from their policy preferences in favor of one or more of several prominent legal values such as respect for precedent, although the justices differ in how much they value precedent…
Kennedy’s predicted behavior shifts dramatically, going from a certain vote to overturn the PPACA in the ideology-only model to only a 46% likelihood of voting to overturn when we factor in precedent. Roberts and Alito also shift, although not so markedly. In the second graph, the probability of overturning the law is therefore much lower (30%).
As always, predictions are hard, especially about the future (see Berra v. Bohr) and especially when it isn’t clear which precedents apply or which legal doctrines are likely to dominate. Thus, any specific prediction must go beyond the model.
That said, here is ours: 6-3 or 7-2 to uphold the law.
Respect for precedent pushes Kennedy to support the law and Roberts comes along for the ride in order to keep the opinion out of Kennedy’s hands (and possibly writing an opinion that cabins the Commerce Clause more than it is now). Alito probably goes with Roberts, but seems more up for grabs. If we are wrong, expect the justices to either downplay precedent and emphasize other legal values (such as federalism) or play up the few precedents that protect state rights.
Policy motivations won’t be irrelevant, but score this one for law.
You heard it here first. Unless you already heard it somewhere else.