If you are pins and needles waiting to see how the Supreme Court ruled on the Affordable Care Act, Sean Trende’s piece is pretty well-reasoned. It’s tough to come out with a prediction that may make the author look like an idiot less than 24 hours later, so it’s best to hedge a bit. Trende puts the likelihood that the bill will be untouched at about 15%-20% and he raises the possibility that the whole law will be struck down because the Justices won’t want to do the hard work of choosing what stays and what goes. His most interesting observation, though, is encouraging. In the past, when Antonin Scalia has issued especially grumpy opinions, it has indicated that other cases were not going his way. Since Scalia threw a hissy-fit over the Arizona immigration case, perhaps he’s not happy with the coming decision on health care.

Trende also does a nice job of explaining why he believes the heath care case will be written by Chief Justice Roberts, and I agree with his reasoning. However, I don’t agree with his conclusion that that is necessarily bad news for the bill. Trende says, “…because we can now deduce with a reasonably high degree of certainty that John Roberts is writing the lead health care opinion…the law is in even deeper trouble that (sic) most observers imagined.”

I don’t think that follows. If Roberts is in the majority, that means that Kennedy is in the majority, too. That’s true regardless of whether they are ruling for or against the bill. It could be a 6-3 decision to uphold or a 5-4 decision to strike all or part of the Act. (I’m assuming here that Roberts would not be the fifth vote to uphold, but might be the sixth).

Let me walk you through this. If the Chief Justice is in the majority, he assigns the case. He can pick himself or anyone else in the majority. But if the Chief Justice is in the minority, the most senior member of the majority assigns the case. In any plausible 5-4 decision, Kennedy would be the most senior member of the majority and would probably assign the case to himself. Knowing this, if Roberts is inclined to rule against the government, he would have good reason to offer the opinion to Kennedy. If Kennedy is not losing the privilege of writing this hallmark decision, he might be more inclined to rule with the conservatives.

If we knew that Kennedy wrote the decision, it would tell us nothing. He’s as likely to rule one way as the other. But the fact that he didn’t write it strikes me as a slight indication that Roberts felt no need to entice Kennedy or show him the courtesy of retaining the ability to write the opinion. I’m reading tea leaves here, but I take Roberts’ authorship as a good sign.

Now, Trende argues that Kennedy showed some sympathy at oral arguments for the government’s case, while Roberts showed none at all. I think that is just factually inaccurate. To take just one example, he challenged Paul Clement on his characterization of the mandate as something the government was forcing you to buy rather than a regulation about how you pay for something you’ll inevitably need.

CHIEF JUSTICE ROBERTS: Well, Mr. Clement,
the key to the government’s argument to the contrary is
that everybody is in this market. It’s all right to regulate Wickard — again, in Wickard against Filburn, because that’s a particular market in which the farmer had been participating.

Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they’re regulating is how you pay for it.

At another point, Roberts interrupted to ask Clement to go back and answer a question previously posed by Justice Sotomayor. But Sotomayor hadn’t asked a question; she had made a statement of fact:

JUSTICE SOTOMAYOR: Yes, but that’s exactly
what Justice Marshall said in Gibbons. He said that it is the power to regulate, the power like all others vested in Congress is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than those prescribed in the Constitution. But there is no conscription in the, set forth in the Constitution with respect to regulating commerce.

Obviously, Roberts wanted Clement to address Sotomayor’s point, which indicates to me that he thought she had a point.

I don’t know how the Court will rule, but the only thing we know from Roberts’ likely authorship is that he is likely in the majority. That means a 5-4 decision to uphold the Affordable Care Act is unlikely, but it says nothing about a 6-3 decision to uphold it. And, again, I think it is slightly more likely that Kennedy would be the author than Roberts of a 5-4 decision against the Act.