Hank Greely, Ph.D.

WASHINGTON—The U.S. Supreme Court is injecting itself into a hotly contested liberal versus conservative political debate that could determine the future of ObamaCare—possibly the most liberal legislation to come out of Congress since the passage of Civil Rights laws during the 1960s.

If the Court sides with conservatives, the decision could be interpreted as a defeat, and may play a role in President Obama losing his bid for re-election.

Ironically, it is a politically-conservative Court that will decide the fate of the law—officially called the Affordable Care Act—that could adversely affect an estimated 25 percent of African Americans out of the total 32 million beneficiaries. If passed, these mostly working poor minorities could end up being without health insurance.

The High Court’s agreement to rule on the constitutionality of the Affordable Care Act within months in the midst of the 2012 national election campaigns sets up historic political and social confrontations certain to produce lasting effects.

The court will hear extra long argument in March and declared it will rule by June as to the constitutionality of a health care act expanding to include 32 million more Americans, and requiring all citizens to buy health insurance. Which way the Supreme Court will rule is uncertain, but past decisions in controversial cases have often been decided by one vote margins, 5-4.

The High Court membership is generally considered to be divided along political and/or ideological lines—meaning conservative Republican-leaning or liberal Democrat-leaning—even though they are all independent and appointed for life. Each must reach his or her own conclusion on the Constitution and the law, and none are certain one way or the other.

Ideally, the nine Justices base their votes on the law as set down in the U.S. Constitution, and not on personal beliefs or opinions. As Aristotle noted, just law must be based on “reason without desire.”

Justices considered conservative and likely to declare the law unconstitutional are Chief Justice John Roberts and Associates Samuel Alito, Antonin Scalia and Clarence Thomas. Thought likely to uphold the law are Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer.

The ninth Justice, Anthony Kennedy, has gone both ways and is considered a possible swing vote. Justices Sotomayor and Kagan are relatively recent appointments whose judicial records are still evolving.

“I believe the Supreme Court is likely to uphold the health reform act,” said Hank Greely, Professor of Law at Stanford University. “Four federal Courts of Appeals have ruled on the constitutionality of the Act. Three have upheld it.

“That makes me more confident that at least one, and possibly more, of the five generally conservative Justices on the Supreme Court will vote to uphold it. I am confident that all four of the more liberal Justices will vote to uphold it—if the Court reaches the merits.

“For the Court to strike down the Act as unconstitutional would cast much federal legislation since the 1930s into question. I just don’t think Justice Kennedy, for one, and possibly other conservative justices will want to do that.”

Of five court cases challenging the law as unconstitutional, four upheld the law and one in Florida, backed by 26 states, ruled against it.

The Florida case was appealed by the government to the 11th Circuit U.S. Court of Appeals in Atlanta, where a three-judge panel also rejected it 2-1.

It is the Florida case, based mostly on the issue of whether Americans can be forced to buy health insurance, that the Supreme Court will decide.

Some legal experts say the entire Affordable Care Law would collapse without the individual mandate. Without citizens nationally buying insurance, the law would work.

Washington confidently predicts the law will be approved, while Republican and state forces are sure it will fall.

Rejection of the law, officially Florida vs. the United States Department of Health and Human Services, would have immense consequences, especially for the poor on Medicaid. The Affordable Care Act requires states to expand eligibility to millions of new patients to continue to participate in Medicaid.

If the law is struck down, states could lose more than a billion dollars each in shared federal Medicaid funds annually.

Kendall Antekeier, Health Care Legislative Specialist at The Heartland, a conservative think tank in Chicago, saw the issue as basically the individual mandate.

“The Court decision will definitely impact the health law’s future,” she said. “As the President has publicly stated, without the individual mandate the law cannot function, but the Supreme Court will not be ruling to keep or reject the overall law.”

As for the tenor of the court, she noted: “There are four justices appointed by Democrat Presidents and five justices by Republican Presidents, therefore if there would be a conservative majority it is extremely small.

“One would assume conservative justices would vote against the individual mandate, but there have been conservative judges across the nation that have upheld the constitutionality of the individual mandate.

“Therefore, looking at the composition, I really can’t say what is most likely,” Antekeier said.

“I predict they are going to uphold the statute if they reach the merits of the case,” commented Daniel Marcus, Professor and Fellow in Law and Government at American University in Washington, D.C. “I’ll go further—I don’t think it will be five to four. I think it is going to be a bigger majority.

“There hasn’t been a major piece of federal economic regulation struck down by the Supreme Court since 1937,” he said. “I just don’t think Roberts will want to have his court remembered as the one who retreated to this pre-1937 world where Congress’ powers were thought to be very limited.

“They won’t buy the distinction between activity and inactivity,” he suggested. The central argument is that Congress can’t require citizens to participate in economic activity—buy health insurance—or impose a penalty for inactivity—not buying it.

“It is unrealistic to view the decision not to purchase health insurance by an individual as inactivity,” he said. “Everybody is going to eventually participate in the health care market. Nobody lives a whole life without ever needing health care.”

As to how the Affordable Care Act could be rejected, the Fourth Circuit Courts of Appeals that considered the question did not reach the merits of the constitutionality argument, holding that it was premature to address it because of the so-called Anti-Injunction Act, which bans federal courts from enjoining the collection of a tax in advance.

The statute is very careful to state that the money you have to pay if you don’t buy health insurance is called a penalty, not a tax.

Only when a citizen is penalized for not buying insurance, after the law is implemented in 2014, could the law be challenged. The dissenting judge in the DC Circuit Court of Appeals took the view that even though it is called a penalty it really is a tax. If the court doesn’t want to decide the case on the merits it has that out.

“It is a good thing that the court is going to decide it,” said Marcus. “The notion that there is an opportunity in the Anti-Injunction Act to not rule on this until it is actually imposed would be really bad for the country.

“If you wait until 2014 for the Supreme Court to decide and if they decide it is unconstitutional, there would be a tremendous amount of work needed to put into implementing the law.”