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

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The effort to predict was on display at a recent hearing of the Senate Judiciary Committee featuring constitutional scholars and past and present government officials. Despite an outpouring of intellectual bonhomie and senators trilling that the discussion was "just like being back in law school," few minds seemed changed.

Georgetown law professor Randy Barnett assured Republicans that forcing citizens to buy insurance was an "unprecedented" abuse of the Commerce Clause. Oregon Attorney General John Kroger countered that the Constitution "does not create or protect the freedom to freeload."

One of the witnesses swore not to have a policy interest in whether the health-care law prevailed.

"I'm not sure it's good policy. I'm not sure it's going to make the country any better," said Charles Fried, former Reagan administration solicitor general and a Harvard law professor. "But I am quite sure the health-care mandate is constitutional."

Fried is somewhat suspect among conservatives these days because of his wholehearted support of Kagan, his law school's former dean. But Fried supported Roberts and Alito as well and said in an interview he does not believe either of them would be inclined toward "such a departure from standard Commerce Clause jurisprudence."

He added, "I don't see Roberts as going for this tea party stuff."

Fried pointed, as others have, to a case from last term. The chief justice, in U.S. v. Comstock , agreed that the Necessary and Proper Clause gave the government the right to to detain sexually dangerous federal prisoners even after their sentences were completed, although even the power to imprison is not explicit in the Constitution.

Roberts assigned the ruling to Breyer and joined the broadly written opinion in full, something neither Kennedy nor Alito was willing to do, even though both agreed with the outcome.

All decisions between now and the time the health-care law arrives at the court will be scrutinized for such "clues." And so will the political climate, which Fried sees as the "wild card" in the court's decision.

"How much of the political bug will these people get bitten by, and how strong will their immunity be?" he asked.

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