Supreme Court watchers: Roberts, Alito no sure bets against health-care mandate

Washington Post Staff Writer
Sunday, February 13, 2011; 10:32 PM

If you are handicapping whether the Supreme Court is going to find the nation's health-care law constitutional, you have a few options.

You can go old school, citing the great arc of decisions that began in 1819 in which the court has built upon one precedent after another to say the Constitution gives Congress great powers to conduct the nation's business.

You can go modern era to cite the instances in the last two decades where the court put on the brakes. It said the Commerce Clause did not give federal lawmakers the power to regulate whatever they wanted.

Or you can go real world and say precedents don't matter much. That's a view that leaves it all up to Justice Anthony M. Kennedy, because why should this be different than any other major decision the ideologically divided court makes?

Some of those who watch the court most closely say it might actually be a little different this time.

They believe the court's four liberals - Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan - have little trouble accepting that Congress has the power to mandate that individuals either secure health insurance for themselves or pay a fine.

They think there is more play among some of the court's most consistent conservatives, most particularly Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

There's still plenty of time to place your bets.

It will be a big surprise to those who watch the court if the justices accept Virginia Attorney General Ken Cuccinelli's request that they short-circuit the legal process, combine all of the challenges from across the nation and take up Obamacare now.

Four district judges have split on the constitutionality of the law, and the appeals courts are about to get into the act.

Congress's individual mandate in the health-care law, of course, is at the heart of the constitutional controversy. Can such an intervention be justified by the Constitution's grant of power to Congress "to regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes" along with Article I's charge to "make all Laws which shall be necessary and proper"?

Those who try to divine the law's future by looking at the court's past consider a list of constitutional decisions in which the court has ruled on seemingly random actions: creating a national bank (yes); imposing crop quotas (yes); prohibiting guns near schools (no); federalizing the crime of domestic abuse (no); regulating homegrown marijuana (yes).

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