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Real Life FantasySCOTUS and Health Care Litigation

A recent opinion by the 11th Circuit Court of Appeals declared unconstitutional a portion of the 2010 Patient Protection and Affordable Care Act (the official tongue-twisting name of the 2010 health care bill often referred to by its supporters and detractors as “Obamacare”). Because the 11th Circuit’s opinion is in direct conflict with a recent opinion by the Sixth Circuit Court of Appeals, the issue is now in a prime position for Supreme Court review, likely late in the coming October 2011 term.
The current litigation over the PPACA has demonstrated that Supreme Court prognostication is not just an educational tool limited to the Harlan Institute and FanstasySCOTUS.org; it also has consequential real-life applications. In a search for the correct answer on the constitutionality of the PPACA, the health care legal battle has thus far resulted in several other contrasting opinions: for example, in just the past year, a judge in the U.S. District Court for the Eastern District of Virginia struck down the Act while a judge in Western District of Virginia upheld it. These contradictory results serve as a useful reminder for students of the truth behind Yogi Berra’s oft-quoted adage that “it ain’t over ‘till it’s over” – particularly when it comes to the Supreme Court.
For instance, Professor Orin Kerr of the George Washington University Law School gave a useful example of this uncertainty when he predicted in a recent blog post on SCOTUSBlog.com that the Supreme Court would uphold the Act by a vote of somewhere between 8-1 and 6-3. While it may be frustrating for students (and lawyers, for that matter) to be unable to pin down a precise vote, Professor Kerr’s two-vote range illustrates an important point that students participating in FantasySCOTUS would do well to heed as they participate: FantasySCOTUS – and real-life Supreme Court prediction – can be as much art as it is science. In a February story, NPR’s Nina Totenberg illustrated the historical difficulty of deciding how the Supreme Court will eventually rule based on the tea-leaves of lower courts’ opinions. Totenberg notes that, while such opinions might be useful as guides to whether certain arguments will carry any weight with the Supreme Court (a point particularly apt in PPACA litigation), the ultimate lesson may simply be that students playing FantasySCOTUS should, “in short, assume nothing, at least until the U.S. Supreme Court rules.”
Allie Myers and Charles Kruly wrote this post.