Thursday, February 10, 2011

Handicapping Obama Care in the Courts

In my last post, I promised I'd explain why I don't think we can count on the federal courts to help us out on Obama Care.  I should say up front that I'm not saying I think the courts shouldn't rule Obama Care unconstitutional.  I think the federal government has gone so far past what its permitted to under the constitution that its hard for me to see a way back.

And I'm also not saying that I think the federal courts definitely won't help us out.  I think there's a chance they will.  But since the Florida decision, I've seen a lot of conservative blog posts seeming very satisfied with how the process is going and with our chances.  And I think that's a mistake - I think at the best we're talking about a 50% chance - and I want to explain why that is.

Here's the main point.  What if I told you candidate A was running against candidate B in a jurisdiction with 9 voters.  Polls showed that 2 of the 9 voters will definitely vote for candidate A, 4 of the 9 will definitely vote for candidate B, and that while we think all 3 of the other 9 voters will vote for candidate A, there's a 30% chance each of them won't.  Who would you predict would win the election?  Well, the way I count it A has 2+(.7*3) = 4.1 votes and B has the other 4.9 votes.

I'm sure most people can guess who each of the 9 voters is.  I'm not trying to suggest that these percentages are exact.  In fact, I think they're definitely wrong.  If someone made me give an estimate, I'd guesstimate the chances of an "unconstitutional" vote as being something like Thomas = 100%, Scalia = 90%, Alito = 80%, Roberts = 60%, Kennedy = 50%, Sotomayor, Breyer, Kagan, Ginsburg = 0%. 

But to some extent the exact numbers don't matter.  The point is that we have 2 votes, Obama has 4, and we have to pick up all 3 remaining votes to prevail.  That isn't impossible - it may well be more likely than not that we'll pick up each of the other three - but its hard.  The bottom line is that the numbers are bad enough that we need alternative plans.

In subsequent posts, I'll look at each of the 5 "conservative" justices to try and figure out in a little more detail how they might vote.

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