... and what better way to belatedly start the month here than by flashing back to last month's oral arguments at the Supreme Court on the constitutionality of Obamacare (Hey, if the name is now good enough for him, it's more than good enough for me. Besides, to quote a favorite bumper-sticker, "Obamacare beats the hell out of I-don't-care"!).
Obviously, there's been a lot of coverage of the various angles of this story. The possibility that a Court decision in favor of Obamacare would galvanize the right and guarantee a Republican blowout in November. The possibility that a Court decision in the other direction would inevitably lead to single-payer health coverage. The missteps by the Solicitor General in defending health care reform--and what he should have said (with which I agree). The risks to the Court's own reputation if it nullifies reform.
What do I think will happen? Hard to say. This is obviously a highly political Court; its tortured decisions in the areas of corporate personhood and the regulation of gun rights couldn't make that any clearer if it tried. And its subsequent ruling in the area of strip-searches seems to make it clear that it is trying. I tend to think, however, that the political impact of completely upholding Obamacare or completely striking it down is so uncertain that it is likely to reach a muddled result--upholding much of the Affordable Care Act but somehow limiting its reach or scope. An all-or-nothing ruling would not be politically palatable to the Court's conservative majority. Doing so would either ratify "socialized medicine" or create a campaign issue that would make the blowout a Democratic one.
One think, as a lawyer, that I know for certain: never try to predict what a judge will do by the tenor of oral arguments. I have all too often seen a judge appear to come down particularly hard on an attorney, yet nevertheless hand that attorney's client a victory on the merits. (If you want to infer that sometimes, that attorney is me, you can.) Anyone who tries to predict the fate of Obamacare based on the toughness of the Court's questions for the Solicitor General simply doesn't know what he or she is talking about.
And, if that person is an attorney, shame on him or her.