They Actually Think the Court Decides the Law on the Legal Merits
Much is being made of the fact that the Conservative Supreme Court Justices were hostile during oral arguments in support of the health insurance mandate contained in the health care law. For some reason so-called ‘experts’ expressed surprise that the Justices had animosity towards the law. Here is CNN’s so called court expert, Jeffrey Toobin
"This law looks like it's going to be struck down," Toobin said earlier today on CNN. "All of the predictions including mine that the justices would not have a problem with this law were wrong."
Toobin and others had been forecasting a decision in favor of the law by as much as an 8 to 1 vote, the opposing vote being that of Justice Thomas, whose ability to judge any legal issue on its legal merits is in question and who almost always decides to vote based on his personal preference for public policy.
Regardless of whether or not one thinks the health care mandate that everyone must have health insurance is good policy, the right of the government to require it is legally unquestionable. The government already requires various forms of insurance. All employees must purchase disability insurance through the Social Security program. They must also purchase health insurance for retirement in the Medicare program. Employers must purchase unemployment insurance for their employees. This is just not a legal question anymore, and has not been so for decades.
The Conservative Justices of the Supreme Court rarely decide a significant case based on the legal merits. They will vote their personal preferences, and the four Conservatives on the Court will vote against the health care mandate regardless of any legal justification. They legislate from the bench and that is why Conservatives are so vociferous in their denunciation of judges legislating from the bench. They know they do it all the time and want to hide that from the public.
Everyone knows the vote will come down to Justice Kennedy. If he votes to uphold the law, the Chief Justice John Roberts will also vote to uphold the law, so that he can assign himself the writing of the majority opinion. So the vote will either be 6 to 3 in support of the law, or like Bush v. Gore, 5 to 4 against it, with the Conservative majority appointed by Republicans once again making a political rather than a legal decision.