This case is not over until it's over—and journalists should stop proclaiming certainty about future events that are not certain. In NFIB, Roberts (infamously) changed his vote months after oral arguments in response to public pressure. The comments are notable—but it's not over.
https://twitter.com/brianbeutler/status/1326191422576484353
For more on Roberts' flip see pages 957-60 in my article: ssrn.com/abstract=31929…
I'm not just being cynical. I've written fairly extensively about the politics of the ACA cases—urging folks to take this challenge seriously from the beginning.
This is not over until it is over.
I'm not just being cynical. I've written fairly extensively about the politics of the ACA cases—urging folks to take this challenge seriously from the beginning.
This is not over until it is over.
If Kav *votes* that the mandate is severable, I agree that’s the end of this. I don’t think they’ll resolve it on standing; I'd guess they strike the mandate (which is insane) but sever it, as hinted. But that is not certain right now, and won't be until the opinion is announced.
When people make assertions what can and can't happen in this case, they're speculating about the future votes of 2—or perhaps 4—partisan Republicans with lifetime appointments. We "know" there are 3 votes against full repeal, and similarly we "know" there are likely 2 in favor.
I'll go further. I've said before, though not publicly, that I think this case comes down entirely to prudential considerations (see Sec II:D of my article). If GOP holds the Senate, I think there's still a chance the ACA is overturned; if Dems have a trifecta, I think it's safe.
But point is, this is all speculation. We know the history of all that's happened to date, the lesson from which—in my view, articulated here: washingtonmonthly.com/2018/12/18/don…—is that this law is not safe under this Court. We know what was said today. But we don't *know* what will happen.
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