Obamacare: How the Supreme Court Could Rule Unanimously

Many pundits predict the Supreme Court will decide the Obamacare case 5-4 along partisan lines. Justices Scalia, Alito, and Thomas and Chief Justice Roberts, they assume, will vote to strike the legislation down, and justices Breyer, Ginsburg, Sotomayor and Kagan will vote to uphold it. If these predictions are correct, the outcome will depend on Justice Kennedy, often considered the "swing" vote between Court conservatives and liberals.

The guessing is that Justice Kennedy will tip the case to the conservative side.

This is all most unfortunate. An extremely important decision about public policy is at stake, and policy decisions are supposed to be made by elected politicians, not by judicial ideologues.

Still, policy decisions by elected officials must not exceed the limits posed by the Constitution. And there are weighty reasons why mandated purchase of insurance could be considered unconstitutional.

Back in 1954 when the Supreme Court found segregated public schools to be unconstitutional, Chief Justice Earl Warren managed to get a unanimous decision of this highly contentious case. It is generally thought that this unanimity helped gain eventual public acceptance of the decision in Brown v. Board of Education.

A unanimous decision by the nine justices, avoiding the appearance of partisanship, would be equally desirable in the current case. A unanimous decision to uphold Obamacare is unlikely. But a unanimous decision to declare it unconstitutional is not impossible and could be the best possible outcome both from the legal and the policy point of view.

The administration argues that mandated purchase of insurance is essential if everyone is to be insured. But a unanimous Court could rely on reasoning supplied by an amicus curia brief submitted to the Court on behalf of 50 medical doctors (and other people) who support a single-payer insurance system. The doctors' basic argument is that the mandate to buy insurance cannot be justified as the only way to skin the cat, since an alternative exists. They point out that a single-payer system supported by taxes is clearly constitutional, exists in a number of countries, and already exists in the U.S. for people over 65.

Such reasoning could unite all members of the Court, would rest on strong constitutional logic and precedent, and would help to focus future policy discussions by elected leaders. And from comments made during oral argument, at least one justice (interestingly, Kennedy) was familiar with the doctors' argument. As the Court's principal swing voter, Kennedy would be in a strong position to lead the Court to a unanimous decision along these lines if he is so inclined.

Such a decision would give everyone something to be happy about. Conservatives would be happy that the Court avoided setting the dangerous precedent that people can be compelled to buy goods or services. Liberals could take satisfaction that the Court had drawn favorable attention to a single-payer system paid for by taxes, their preferred solution all along, and perhaps helped make such a system politically possible in the near future.