High Court Armageddon

The media frenzy over legal challenges to President Obama’s health care law before the U.S. Supreme Court has come to resemble the way ESPN and sports radio stations drum up excitement and anxiety for the Super Bowl or a Red Sox / Yankees playoff series. The three days of hearings devoted to the case, as well as the anticipation of a ruling in the heart of an election season, may make this “the case of the century,” or at least a more aggressively and comprehensively covered Supreme Court dispute than even Bush v. Gore.

Not surprisingly, as has been noted before, the starring parties are members of the most recent Lawdragon 500 guide. Paul Clement, a partner at Bancroft PLLC, represents the states challenging the law, while Donald Verrilli, as Solicitor General, will defend the law, formally referred to as the Patient Protection and Affordable Care Act. Verrilli had also made our past guides for his work at Jenner & Block.

The Times reports that lobbying groups have spent “tens of millions of dollars in the last two years to steer the political and legal debate” in the run up to this week’s action. Justice Clarence Thomas referred to the political pressure as "noise," and said that he and the other justices will drown it out as does a basketball player taking a free throw in a loud arena.

As the New Republic’s Jonathan Cohn wrote last week, it’s hard to know if case-of-the-century hype is deserved “without knowing the outcome.” However, in addition to implications related to national politics and the delivery of healthcare, the case could have “far-reaching” legal consequences: “At least in theory, the court could use this case to redefine the boundaries of federal power, in a way that the courts have not done in nearly a century.”

Renowned constitutional law scholar Erwin Chemerinsky, dean of the University of California, Irvine School of Law, expands on this on the ABA Journal’s page. He writes that if the Supreme Court strikes down this law, “it will be the first time since the New Deal that a major federal regulatory statute has been declared unconstitutional.”

Another highly regarded court commentator, author Jeffrey Toobin, writes on the New Yorker's page that constitutional challenges to the idea of an individual mandate, first popularized in the late 1980s, took decades, which was “understandable” given the Commerce Clause powers. Though opponents argue that the new mandate does not regulate economic activity but “economic inactivity—i.e., not buying insurance,” the 6th Circuit “demolished that argument” when upholding the law.

The challenges may suffer a similar fate at the the high court. The ABA Journal has an impressive Special Edition on “health care and the high court,” including a scorecard of key players and a poll of experts on the anticipated outcome of the case. The consensus is that the law will be upheld by a 6-3 vote, with Justices Thomas, Antonin Scalia and Samuel A. Alito as the dissenters.

The National Law Journal also has extensive pre-game coverage.