This contribution for our symposium is by Orin S. Kerr, a professor at George Washington University Law School, where he teaches criminal law and procedure. His scholarly work focuses on the Fourth Amendment and computer-related crimes. Professor Kerr was a law clerk for Justice Anthony M. Kennedy for the October Term 2003.
Here are my predictions on the future of the mandate litigation in the Supreme Court:
1) Will the Court grant cert, and if so, when?
I think they'll probably grant cert eventually in one of the cases, but I doubt they're in a hurry. The lower courts are just beginning to evaluate the constitutionality of the mandate, and each new opinion is adding a fresh perspective. The initial opinions were high on ideology but weak on analysis. More opinions, including en banc opinions and dissents from denial of hearing, will help both the Justices and the litigants better refine their arguments. In Supreme Court lingo, the Justices will want the issue to "percolate." So while I think they'll take a mandate case eventually — and they certainly will if a circuit court strikes down the mandate en banc, or with a panel that survives en banc review — I expect it will be a while.
2) If the Supreme Court does review the constitutionality of the mandate, how will they rule?
Predicting the future is hard, but SCOTUSblog isn't paying us the big bucks for nothing. To make things interesting, I'll hazard a guess of how seven of the nine Justices will vote (assuming all nine are still on the Court when the case is heard).
Here are my guesses. Justices Breyer and Ginsburg are pretty obvious votes for the mandate, as they dissented in United States v. Lopez. Justices Kagan and Sotomayor seem like safe votes for the mandate, even if only for the reason that there is almost no opposition to the constitutionality of the mandate in the Democratic establishment from which they were appointed. Chief Justice Roberts will likely vote to uphold the mandate given the very expansive views of the Necessary and Proper clause that he signed on to just recently in United States v. Comstock. I suspect Justice Kennedy will vote to uphold the mandate given his concurring opinion in United States v. Lopez. And I'm pretty sure Justice Thomas will vote to strike down the mandate given his views of the Commerce Clause. In contrast, I don't have good sense of where Justices Scalia and Alito might come out.
Putting the numbers together, I expect 6 votes for the mandate, 1 against, and 2 uncertain. If my numbers are right, the mandate will be upheld by a vote of anywhere from 6-3 to 8-1.