Roberts likely to poll justices on health care stance | Take our survey

Chief Justice John Roberts

U.S. Chief Justice John Roberts will probably ask each of his eight Supreme Court colleagues gathered in an oak-paneled room Friday where they stand on the law that would expand health insurance to at least 30 million Americans and affect one-sixth of the economy.

The secret, preliminary vote, following the court’s standard practice, will kick off three months of behind-the-scenes deliberations on the fate of the law. The outcome will shape Roberts’s own legacy, influence President Barack Obama’s re-election prospects and potentially deepen the partisan gulf that is already dividing the country.

“This is the defining case for this term and quite possibly the entire Roberts chief justiceship if they’re going to strike it down,” said Sanford Levinson, a University of Texas law professor.

Almost six and a half hours of argument over the past three days cast doubt on the survival of the law’s centerpiece requirement that individuals get insurance. The hearings made clear the justices are splitting along ideological lines, much like a Democratic-controlled Congress was when it enacted the law in 2010 without a single Republican vote.

The court’s decision will mark the first time it has ruled on a president’s biggest legislative accomplishment in the middle of his re-election campaign. The measure is being challenged by 26 states and a business trade group as exceeding Congress’s constitutional powers.

The outcome will hinge on Roberts and Justice Anthony Kennedy, said Susan Low Bloch, a constitutional law professor at Georgetown University Law Center in Washington.

During arguments over the insurance requirement, both justices trained the bulk of their questions on U.S. Solicitor General Donald Verrilli, the Obama administration lawyer who defended the law.

Roberts directed three-quarters of his approximately 20 questions to Verrilli during that two-hour argument. Roberts said the health plan would “require people who are never going to need pediatric or maternity services to participate in that market.”

Kennedy said the law “changes the relationship of the federal government to the individual in a very fundamental way” by forcing people to buy a product.

“It was breathtaking when Kennedy expressed as much skepticism as he did at the government’s individual mandate,” said Ilya Shapiro, an opponent of the law and a senior fellow in constitutional studies at the Washington-based Cato Institute, which urges smaller government. “I almost began fist-pumping.”

Should they conclude that the insurance requirement is unconstitutional, Roberts and Kennedy would probably join three other Republican appointees — Antonin Scalia, Clarence Thomas and Samuel Alito — in a 5-4 majority. The court’s four Democratic appointees all suggested they would vote to uphold the law.

 Loading ...