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View Diary: Supreme Court, Affordable Care Act: Is the mandate constitutional? (372 comments)

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  •  You're optimistic (1+ / 0-)
    Recommended by:
    wishingwell

    6-3 at best.

    •  I don't know. I think that Scalia (1+ / 0-)
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      wishingwell

      is gettable.  Alito and Thomas, no.  But I think that Scalia might just come around on this one.  7-2 is possible.

      Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

      by Its the Supreme Court Stupid on Tue Mar 27, 2012 at 07:19:19 AM PDT

      [ Parent ]

      •  Why not Alito? (1+ / 0-)
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        Paleo

        Read his Comstock concurrence. If Scalia is game, I don't see why Alito wouldn't be.

        •  Alito will follow Roberts (0+ / 0-)

          Maybe not follow follow, but vote the same way.

          Scalia is probably more likely to vote to uphold than those two.

          "We calmly accept our uncertain position." Joey Rathburn. But HBO can kiss my ass for cancelling Luck.

          by Paleo on Tue Mar 27, 2012 at 07:29:53 AM PDT

          [ Parent ]

          •  This is why I'm saying 8-1 (0+ / 0-)

            You say Scalia is more likely to uphold than Alito and Roberts.

            Yet is Roberts, as CJ, really going to dissent in a 6-3 decision just to make a point?

            And is Alito, who sided with the majority in Comstock, going to find the N&P clause less useful in this context then there, while Scalia does the opposite?

            My take away from all this disagreement on who is most likely to be in the majority is that they all, save Thomas, have good reason to be.

      •  Hope your are right (1+ / 0-)
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        Vicky

        Today will be a revealing day.

    •  Without looking at individual justices, (1+ / 0-)
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      Losty

      and only the issue, including the political ramifications behind it, I think that's absolutely correct: 6-3.

      But when we look at each justice, it seems so difficult to predict which are most likely to vote against it.

      The reason for that, I think, is that other than Thomas, each of them has a good reason for voting to uphold.

      That's why I think that unless its a 5-4 decision to strike, the dominos are likely to fall.

      Roberts, Scalia, Kennedy and Alito each would have a difficult task of getting around their past decisions in order to find a reason to strike. I think each of them is capable of doing so, I just don't see what reason they would have unless they all agree to do so.

      They are better off, in my mind, writing a concurrence (especially Alito and Scalia) clearly stating why they feel like this case fits within the current limits and does NOT expand federal power.

      •  Political reason will not allow it to be 8-1 (1+ / 0-)
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        lysias

        or even 7-2 as too many Republican politicians have skin in the game claiming it's unconstitutional.  If it was an 8-1 decision it would be a huge rebuke to the AG's who claimed unconstitutionality and the GOP who screamed as much from the roof-tops.  

        This will be 6-3 at best, with it being said in Con circles that Roberts only found with the majority in order to write the opinion and Kennedy will be ultimately blamed by the Cons.  

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