What Happens if the Supreme Court’s Obamacare Decision is Mixed?
As recently as a week ago, everybody watching the Supreme Court seemed convinced of one thing: The justices had made up their minds about the Affordable Care Act. They hadn’t issued a decision and, perhaps, they were fine-tuning the legal arguments they would make in their written opinions. But they knew how they were ruling. They just weren’t telling anybody about it.
Now a new rumor is making the rounds: Five justices have decided to invalidate the individual mandate but they have not settled on what else, if anything, to invalidate along with it. Does the story have any basis in fact? I have no idea. But I can tell you that this rumor, which I mentioned on Monday and appeared in the blog of Avik Roy at Forbes, is one of several tales of deliberations I’ve heard since oral arguments ended.
Some of these stories had the justices upholding the law. Some had the justices overturning it. One even had a beleaguered, dejected justice taking clerks out to get drunk. Yeah, that doesn’t seem very likely. Truth be told, every single story was told fourth- or fifth- or sixth-hand (as Roy noted his was) and no story seemed terribly convincing, as fun as it might be to imagine Ruth Bader Ginsburg or Antonin Scalia doing tequila shots. Most likely, Ginsburg was correct when she said, a few days ago, that “Those who know don’t talk. And those who talk don’t know”—which means we may never get the real story, although I’m hoping Jeffrey Toobin can suss it out in time for his new book.