This past Monday, the U.S. Supreme Court announced that it will hear extended oral argument on four separate questions pertaining to the Patient Protection and Affordable Care Act, aka ObamaCare: (1) whether Congress had power to legislate the act’s “individual mandate” provision, which requires individuals to purchase health insurance or else pay a penalty; (2) whether that mandate is “severable” (meaning that the rest of the statute would stand even if the mandate were found unconstitutional); (3) whether the Anti-Injunction Act (don’t ask) deprives the Court of jurisdiction over the case; and (4) whether the statute unduly “coerces” states into an expanded Medicaid program. Enough to make the layman’s head spin—and more than enough to pose a huge risk of strategic judicial voting.
Strategic judicial voting probably happened in some appellate ObamaCare decisions, and it has happened on the Supreme Court. For example, the chief or a senior justice may join a majority with which he disagrees so as to assign the opinion to himself and in that fashion to limit the damage. The risk increases when multiple issues provide an opportunity for de facto vote trades and where, as here, the political salience of the case invites strategic behavior.
In the ObamaCare case, the Court’s four liberal justices enjoy a far more straightforward calculus than the conservatives. They know, as everyone else knows, that they form a solid bloc in defense of the statutes on questions (1) and (4). Thus, they can deploy the jurisdictional issue (3) for purely strategic purposes. Let a single conservative justice think or say that the Court lacks jurisdiction: the liberals can produce a majority for that holding, or splinter the Court into three camps (pro-mandate, anti-mandate, no jurisdiction). Another, slightly more far-fetched but entirely possible scenario: let there be five conservative votes to declare the individual mandate unconstitutional and one or two of them deeming it non-severable. The liberal bloc can either “save” the remainder of the statute by voting for severability—or else, threaten to bring the entire statute down by voting the other way. Conservative justices who judiciously want to excise the mandate from the statute—this being an election year and all—would no longer have that option. They’d have to think long and hard.
And so on. Every curbstone game theorist knows that situations of this sort can produce almost any result. The order of votes and control over the agenda (whether in judicial conference or behind-the-scenes maneuvering) count for a lot. The eventual result may reflect no one’s authentic preferences—least of all those of voters who expect constitutional clarity and instruction.