Health Reform: Oscar -bait or Grease 3: Grab the popcorn and watch
It's getting hard to keep track all of the court rulings for and against the Affordable Care Act, and why even bother. We all know this is heading to the Supreme Court next summer, just in time to play a role in the presidential election.
By Memorial Day 2012, few will care how the Court of Appeals for the Fourth Circuit in Virginia ruled (for the individual health insurance mandate, essentially), much less the Sixth Circuit in Cincinnati (for) or the 11th Circuit in Atlanta (against). The nation's focus will probably be on not even the whole Supreme Court, but one single justice who can provide a swing vote, the fate of the individual mandate resting in his hands.
Since the Republicans took back the House in the 2010 midterms, Washington policymaking has fully appropriated the modern Hollywood blockbuster model: work feverishly to avoid a catastrophe, while sticking with a formula of tortuous Sturm und Drang setup that is all wrapped up in the waning minutes. At some point, the viewing public (once known as the electorate) can be forgiven if they want to fast forward past the first two hours of posturing and see how we blow up the meteorite, avoid the alien invasion, or kill the evil wizard.
The Supreme Court chapter is just one installment in this franchise, which follows a quarterly release schedule. The Tax Cut Deal of winter 2010 was followed by spring 2011's Budget Battle and this summer's Debt Ceiling Crisis. By the first sequel, the formula was firmly set, with no reasonable person expecting a resolution until the very last minute. Instead of changing up the routine for Debt Ceiling Crisis, policymakers inserted a bigger asteroid, with the economy of the civilized world in the balance.
Also like modern blockbusters, the resolutions to these crises have begun to feel empty instead of feel-good. Instead of good triumphing over evil, we're just getting a set-up for the next installment. Debt Ceiling Crisis was simply a prelude to Super Committee Challenge, coming this fall.
In true Hollywood style, the ending of the Supreme Court chapter may throw the audience a surprise ending. Everyone is expecting the SCOTUS decision to rest on the swing vote. of Justice Anthony Kennedy, even though in many recent 5-4 decisions Kennedy has played the role of reliable conservative. Scholars such as Orin Kerr, George Washington University Law School professor, have written on several occasions that Chief Justice John Roberts may be the one to watch, based on his opinion in 2010's United States v. Comstock. The healthcare opinion may be based on the necessary and proper clause rather than the commerce clause. Conservative justices have to decide whether healthcare is an area that should be handled by the feds, like marijuana use or Florida election results, or is strictly state-level, such as guns in schools.
So, it's okay if you've already forgotten the circuit court scorecard regarding healthcare reform. Unless the producers get more inventive (Kennedy retires!), just tune in for the Supreme Court ruling next summer and wait for the next installment, the 2012 Election.