The attitude is based on oral arguments in which all five conservatives asked skeptical questions, including the presumed “swing vote,” Anthony Kennedy, who seemed to see this as a basic question of liberty, the freedom not to participate in the market.
But here's my prediction, for what it is worth. The law will be upheld. Most likely, by a 6-3 vote.
The reason is basic. Without this law regulating insurance the government has no control over one-sixth of the economy, short of taking it over, which it is otherwise in the process of doing. The current law is a Republican solution, first proposed by Richard Nixon a generation ago, and implemented by Mitt Romney less than a decade ago.
What, really, is the Republican Party's alternative to the present law? So-called health savings accounts do nothing to curb health care inflation. They don't keep doctors from engaging in blatant conflicts-of-interest, owning clinics and hospitals, deciding on tests, scans, and the most expensive treatments on their own say-so. They don't keep hospital companies from building palaces in place of treatment centers, with enormous atriums, and a stupid imbalance between specialists and generalists.
What would business face without ObamaCare? Millions priced out of the insurance market, and millions more about to be. No control over costs.
Worse would be this inconvenient truth. Medicare costs less than private insurance. VA care costs less than private insurance. Medicaid costs less than private insurance. These plans care for our biggest health care risk – old people, veterans, poor kids – the far end of the cost bathtub. The gap is large, and it's growing.
Without ObamaCare, the cry of “Medicare for All” or even “VA for All” will within a short time become irresistible. Not just from consumers, but from businesses that face a choice between investing in, say, Germany, where health care costs 10% of national income, or the United States, where 17% of GDP covers fewer-and-fewer.
A generation of conflict has made today's Supreme Court the most politicized since the days of Dred Scott, even more so than the court that struck down the National Recovery Act. My guess is that Justice Roberts and Justice Kennedy are going to hear a whole lot, from insurers and big businesses, telling them the truth about this matter – that it's ObamaCare or Medicare for All, that it's regulation of the market or a government takeover.
And they'll find some excuse to tailor a narrowly-drawn opinion that seeks to limit the law but doesn't strike it down. Add those two to the four you know you have and it's 6-3.
Republicans, as in Teddy Roosevelt, Richard Nixon, Robert Dole and Mitt Romney, will have won, but voters won't understand that until many, many years from now.