By Robert Barnes
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).
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.