Experts eat crow after healthcare ruling

By Sam Baker

The Supreme Court’s healthcare ruling upended conventional wisdom and expert predictions at nearly every turn.

The court said in a 5-4 decision this week that the individual mandate in President Obama’s healthcare law is constitutional. The court also said the law’s Medicaid expansion was unconstitutional, but found a fix that didn’t require striking down the entire law.


Even lawmakers and legal experts who correctly predicted that the court would uphold the mandate were surprised by the details of the decision and the makeup of the court’s majority. Some lawyers who worked on the case were surprised at their victories on certain points.


“I’m still surprised at how we got here. I’m sure President Obama is surprised at how we got here,” said Alberto Gonzales, who served as attorney general under President George W. Bush and helped vet Chief Justice John Roberts during the nomination process.


Gonzales said he expected the court to uphold the healthcare law, but not on the grounds it used.


Roberts and the court’s liberal justices said the individual mandate is constitutional because it functions as a tax — an argument that hadn’t gotten any traction until Thursday.


“That was a big surprise to me,” said Ilya Solmin, a law professor at George Mason University.


Every lower court to consider the mandate rejected the Justice Department’s tax argument — even the conservative judges who ultimately upheld the law. It was the last argument in the Justice Department’s written briefs (most briefs put their best arguments first), and it didn’t get much discussion at the Supreme Court.


Ultimately, both sides of the case won at the Supreme Court with the arguments that had been least successful in lower courts.


“The weakest argument on our side of the case was Medicaid, and the weakest argument on the government’s side was tax,” said Gregory Katsas, an attorney at Jones Day who worked on the case against the mandate.


The mandate’s critics not only won on the Medicaid argument, they won big. The court ruled 7-2 that the Medicaid expansion, as written, was coercive since it told states they would lose existing Medicaid funds if they didn’t participate in the new program.



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Even Justice Elena Kagan, who seemed sharply critical of the Medicaid challenge during oral arguments, said it was unconstitutional.


“It’s just a boatload of federal money to take and spend on poor people’s healthcare,” Kagan said in March. “It doesn’t sound very coercive to me.”


Attorneys who worked on the lawsuit filed by 26 states and the National Federation of Independent Business were surprised the court even agreed to hear the Medicaid challenge, since the two lower courts to consider it had both sided with the federal government.


Some Republican lawmakers also said they did not expect the court to strike down the Medicaid expansion, no matter what they decided on the mandate.


“The conventional wisdom was refuted,” said Randy Barnett, a Georgetown University law professor who worked on the case against the mandate.


When the court agreed to hear the Medicaid challenge last year, Barnett said, “I guess they’re just willing to consider everything,”


Legal experts also didn’t expect a 5-4 ruling in which Roberts sided with the court’s liberal members on the mandate. Some thought Roberts was certain to side with the court’s conservative bloc, leaving Justice Anthony Kennedy as the potential swing vote. 


Others speculated that Roberts and Kennedy would move as a pair, to avoid a 5-4 ruling either way.


The liberal pundits who saw Roberts as a possible swing vote based their hopes mostly on his Commerce Clause rulings (since that’s what the case was expected to come down to), and many gave up hope after the arguments.


“I was surprised that only Roberts went,” said Elizabeth Wydra, chief counsel at the Constitutional Accountability Center.


In short, although some lawmakers and lawyers were right about the basic outcome, predictions about how the court would get there were largely off-base.


“Guilty as charged,” said Kevin Walsh, a University of Richmond law professor and a former clerk to Justice Antonin Scalia. “This present constellation is really surprising.”


No legal expert had as much single-handed influence over the conventional wisdom as Jeffrey Toobin, the prominent legal analyst and CNN contributor who declared the arguments a “train wreck for the Obama administration” and said the mandate appeared to be “doomed.”


Toobin ate his words without complaint once the decision was handed down, saying on Twitter that he was one of the “losers” in the case and acknowledging Solicitor General Donald Verrilli, whose performance Toobin had described as “simply awful.”