As the Supreme Court prepares to hear historic oral arguments on President Obama’s health care reform law this week, a survey of legal insiders released Monday morning found a widespread expectation that the Court would uphold the central pillars of the law.
The survey asked former Supreme Court clerks and lawyers who have argued cases before the Court to assess the probability, on a scale from zero to 100 percent, that the Justices would strike down the law’s mandates on individuals to purchase health insurance or its provisions expanding eligibility for Medicaid to millions of more uninsured adults.
Overall, those surveyed felt there was only a 35 percent probability that the Court would strike down the law’s individual mandate as unconstitutional. Attorneys who had clerked for one of the Court’s four conservative Justices and those who had clerked for Justice Anthony Kennedy, who is considered the key swing vote on the issue, forecast a somewhat higher probability that the law would be struck down than those who had clerked for the four liberal justices.
But all three groups of former clerks-even those who had worked for the Court’s conservative block-said the odds that the Justices would uphold the mandate was well above 50 percent. Lawyers who have argued before the Court said there was a 36 percent probability the Justices would strike down the mandate, about the same as the clerks overall.
“I don’t think this case will be nearly as close a case as conventional wisdom now has it,” one respondent noted in an open-ended comment. “I think the Court will uphold the statute by a lopsided majority.”
The survey was sponsored by two centrist groups: American Action Forum, a center-right Republican advocacy group and the Blue Dog Research Forum, a center-left Democratic advocacy group. It was conducted by Purple Insights, the research division of Purple Strategies, a bipartisan political consulting firm.
The survey was not a statistically valid random sample, but more akin to a National Journal Insiders Poll that measured sentiment among a group of key Washington players. To conduct the poll, Purple Insights last week directed e-mails, and follow-up phone calls at a group of former clerks and attorneys who have argued before the court. In the end, 43 former clerks and 23 attorneys responded to the on-line poll. “From a methodology standpoint, this was a very hard to population to reach…some of the most elite attorneys in the country,” said Doug Usher, who conducted the survey for Purple Insights. “We were pleased with their participation rate and we think the results will add to the discussion.”
Given that level of participation, the results are more suggestive than conclusive. But they may reflect a gap between a political community, where the dominant expectation is that the Court’s five Republican-appointed Justices will unify to strike down the law, and a legal community operating on different assumptions.
“Certainly many people have political opinions; many people have policy opinions; we have offered economic arguments about these issues,” said Douglas Holtz-Eakin, President of the American Action Forum. “But in the end it’s a legal issue. We thought it would be useful to go to the people who know those nine jurists and ask them-and this is what we have found.”
On another question, those surveyed said there was only a 27 percent probability that even if the Court did strike down the individual mandate, it would overturn the entire bill. The respondents said there was a 36 percent probability that if the Court invalidated the individual mandate, it would rule that it was “completely severable” and thus have no effect on the rest of the legislation; the respondents said the probability was 38 percent that if the court overturned the mandate, it would strike down only some directly related provisions, like the ban on insurers denying coverage based on prior medical conditions.
The attorneys surveyed said the probability was just 19 percent that the Court would accept the argument that the legislation’s efforts to expand Medicaid eligibility amounts to unconstitutional coercion of the states. Even if the Court did accept that argument, those polled said they believed there was a nearly two-thirds probability that the Justices would rule that the Medicaid provisions could be struck down without any effect on the rest of the legislation.
The individual mandate first appeared as a matter for national debate as part of the Senate Republican alternative to Bill Clinton’s health care reform bill in 1993; it resurfaced in national debate when Mitt Romney signed it into law as governor of Massachusetts. Since Obama signed the national version into law in 2010-after opposing the ideas a candidate-Republicans have excoriated it as a threat to liberty. Polls consistently have found that a majority of Americans oppose the mandate.
Holtz-Eakin, who served as the chief issue adviser in John McCain’s 2008 presidential campaign, said that if the Court upholds the individual mandate “it takes away the argument that it was an inappropriate use of government power.” But, he said, such a decision would leave open the question of whether “it’s the right kind of way to use that power. There is still a fundamental disagreement that should, and will, be decided by elections and legislative action.”