Thursday, June 28, 2012

Torvik and Gillette are smarter than Klein and Toobin‽

The Supreme Court has upheld Obamacare.  Mr. Torvik and I were right on the result but wrong on whether Justice Kennedy would be in the majority.  I was right that Chief Justice Roberts would write the opinion (I do not believe Mr. Torvik made a prediciton on this point but maybe he did.  I am too lazy to look.).  Kennedy, Scalia, Thomas, and Alito filed a joint dissent so my prediction about the tone of Scalia's dissent is probably wrong. 

In any event, regardless of whether you agree with the decision, I would like to think we can all agree that our March 28, 2012 post was spot-on in pointing out that the predictions that Obamacare was doomed by Ezra Klein and Jeffrey Toobin were ridiculous.   Predicting outcomes based on oral arguments is, was, and always will be a foolish exercise.


  1. You're right that I never made a prediction about the author of the opinion. Your post on the foolishness of predicting outcomes based on oral arguments holds up extremely well. Nicely done!

  2. Congrats, but what do the two of you think about the hand-wringing re: Roberts' refusal to accept either the Commerce Clause or "the necessary and proper" argument?

  3. Elliot -- I'm ambivalent about that. I think the mandate could have been upheld at least under the necessary and proper clause, but it would have been a very narrow holding that relied on the "unique" nature of the health care & health insurance markets. Likewise, it's hard to see how Roberts's ruling (assuming it is not dicta) really limits the federal government in any appreciably way. Congress can't force people to buy things under the commerce power. It's hard to imagine any other circumstance where Congress will attempt to do that.

    So it's a nice thumb in the eye to all the scholars and partisans who wanted to pretend that the commerce clause was practically unlimited, but I doubt it will have any real-world effect.


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