'Repeal Obamacare'

Buttons reading "Repeal Obamacare" at the annual Conservative Political Action Conference (CPAC) in Washington. (Jonathan Ernst/Reuters / March 23, 2012)

(Reuters) - Conventional political wisdom holds that the Supreme Court, scheduled to hear a challenge to President Barack Obama's healthcare law beginning on Monday, is likely to strike it down on partisan lines. The court's Republican appointees enjoy a 5-4 majority.

But a review of lower court rulings by conservative judges, subtle signals from individual justices, and interviews with professors and judges across the ideological spectrum suggest that presumption is wrong - and that the court will uphold the law.

Not that conservative court-watchers like to broadcast such a view in this combustible atmosphere.

"It's almost like they're confessing to some secret vice when they say they don't think (the law) should be struck down," said former U.S. Court of Appeals Judge Michael McConnell, a George W. Bush appointee who now teaches at Stanford Law School, referring to some fellow conservatives.

Several legal experts who do not necessarily favor the law, but bet it will survive, point to the decisions of two leading conservative federal appellate judges who already have sided with the Obama administration. The core of its healthcare law is a requirement that most people in the United States buy insurance by 2014.

In decisions upholding that so-called individual mandate last year, those judges stressed the classical conservative regard for judicial restraint and deference to Congress. While they wrote that the healthcare law might be flawed as a policy matter, they said decisions on how to reform the system were best left to legislators.

By contrast, three conservative judges who rejected the law took what some critics said was a more activist approach and said they were compelled to strike down the law because it exceeded congressional power. One invoked the 18th-century Boston Tea Party, in a decision widely viewed as a salute to the modern-day Tea Party movement's advocacy of less government involvement in people's lives.

In an interview, U.S. Appeals Court Judge J. Harvie Wilkinson, who was appointed to the 4th Circuit in Richmond, Virginia, by President Ronald Reagan, spoke of the philosophical division among Republican appointees to the federal bench.

"There's a real tension now in conservative ranks between those who want to use (the Constitution) to limit the scope and size of federal government," Wilkinson said, "and those of a more traditional strain of conservatism that believes that these epic battles should be left to the political branches to fight out."

Wilkinson, who was on George W. Bush's short list for the Supreme Court, has not presided over any of the challenges to the healthcare law that have made their way through U.S. courts.

But he suggested in a recent book on constitutional theory that the law was valid, subject to Congress' power to regulate commerce in the states: "The idea that Congress is constitutionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy strikes me as a heavy lift." Healthcare spending totals more than 17 percent of U.S. gross domestic product.


If the four liberal justices vote to uphold the law, as legal analysts overwhelmingly predict, only one of the conservatives would be needed to make a majority. One likely candidate is Chief Justice John Roberts, who is generally seen as a more traditional conservative.

A 2005 appointee of George W. Bush, Roberts has often deferred to Congress. Most notably, he voted with liberals in a 2010 decision that endorsed congressional authority to require "sexually dangerous" prisoners to remain in state custody after completing their sentences. That decision in United States v. Comstock is among the cases the Obama administration relies on to defend the individual mandate.

Another conservative justice who could defy political-based assumptions is Anthony Kennedy. More than any current member of the court, he has straddled the middle and been the swing vote when the liberal wing has prevailed. That was seen as recently as Wednesday, when he joined the four liberals and wrote the decision extending the constitutional guarantee of effective legal assistance to defendants at the plea-bargain stage, not just at trial.

Kennedy's decisions relating to Congress' power to regulate interstate commerce - which will be key to the healthcare case - have been mixed. But in recent years, he has ruled for broader federal authority. In 2005, for example, Kennedy with four liberal justices - and conservative Antonin Scalia - declared that federal law trumped state policy allowing the cultivation of marijuana for medical use. That decision expansively interpreted federal commerce power and has become a major component of the Obama administration's legal defense of the healthcare law.

The Obama administration highlights that ruling, Gonzales v. Raich. In what some court watchers see as an attempt to speak to Kennedy, administration lawyers even quote him in a separate case where he voted to strike down the federal law at issue - banning guns at local schools - but stressed in his opinion that Congress had great regulatory power in national markets "to build a stable national economy."


At the heart of the healthcare law signed by Obama in March 2010 is the mandate that people buy insurance or face a tax penalty. That requirement is intended to bring more healthy people into the U.S. medical system, to share costs and offset the burden the uninsured put on the system when needing emergency care.