Supreme Court Health Care Case: What Do The Experts Think Will Happen?

In anticipation of the historic oral arguments set to take place Monday, the American Bar Association released a preview that included a survey of academics, journalists and lawyers who follow the Supreme Court.

The group surveyed thought the Affordable Care Act will leave the Supreme Court intact, with 95 percent sure the justices will uphold the law, while 15 percent said it will be overturned, at least partially. Most also agreed that the individual mandate requiring Americans to carry insurance will be the deciding issue in the case.

In addition to the mandate, the Supreme Court will hear arguments on other aspects of the health care law, such as whether the justices can hear the case before the mandate goes into effect in 2014; whether the entire law must fall if the mandate is found unconstitutional; and the constitutionality of an expansion of Medicaid.

The survey also included the experts' thoughts on the likelihood of how each justice will vote on a particular issue.

On the mandate, a majority of the experts believed there is a good possibility of six votes to uphold the provision. The court's liberals -- Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor -- are locks to uphold it.

Sixty-Nine percent of experts surveyed opined that Chief Justice John Roberts will vote to uphold the mandate; 53 percent said Justice Anthony Kennedy, a key swing vote on most contentious high-profile cases before the high court, would find the insurance requirement constitutional.

About the court's conservative-leaning justices, 62 percent of experts believed that Justice Antonin Scalia will vote to strike down the mandate. Given his past views on Congress' power under the Commerce Clause, the Obama administration believes he can be persuaded to uphold the mandate. Fifty-nine percent of the experts believed Justice Samuel Alito will strike the mandate down.

The only certain no vote on the mandate, according a majority of the experts, will be Justice Clarence Thomas'.

Should the Supreme Court find that Congress exceeded its constitutional authority with the insurance requirement, the experts believed that the justices will keep the rest of the law intact.

Those surveyed believed the four liberal-leaning justices will likely vote to keep whatever is left of the Affordable Care Act; more expected Roberts, Alito and Scalia to join them. Only Thomas was expected to tank the entire health care law.

Overall, 70 percent surveyed expected the Supreme Court to find the Affordable Carte Act severable from the mandate.

Experts were also in agreement that the justices will agree to take on the case. At issue for the court is an obscure law called the Anti-Injunction Act prohibiting people from challenging taxes before they are levied.

The enforcement mechanism for the mandate is a tax penalty; both the Obama administration and the health care law's challengers agree the Anti-Injunction Act does not cover the Affordable Care Act. The Supreme Court appointed an outside attorney to argue the other side.

In this instance, the court's liberal-leaning justices were seen as the most open to punting on the health care law challenge; 29 percent believed Breyer, Ginsburg and Kagan would wait until the mandate kicks in before hearing the case, while 44 percent believed Sotomayor would do so.

Experts also said Roberts and Kennedy will join the liberal wing of the Supreme Court to uphold the expansion of Medicaid eligibility, which the states will be expected to cover eventually. Scalia and Alito were seen as likely yes votes, while 73 percent thought Thomas would vote no.