[Update: Oops. It turns out that I’m demonstrably wrong on Scalia’s practice on reading dissents, as he had already read his dissent from the bench in March in a pair of linked cases. Maybe that bolsters my bottom-line prediction by making it even less likely that he would read a dissent for a third time in a single term, but it certainly upsets my line of reasoning.]
I’ve abstained up until now from making any predictions on how the Obamacare cases will be decided. But I’m now ready to offer my own reading of the tea leaves. Specifically, the fact that Justice Scalia read his dissent from the bench in the Arizona immigration case leads me to believe that the Court will invalidate the individual mandate by a 5-4 vote.
Let me explain the logical links (and expose their potential weaknesses):
1. As I understood it when I was a law clerk for Justice Scalia twenty years ago, there was an etiquette at the Court that any single justice would read a dissent from the bench no more than once each term. I gather that that etiquette is no longer uniformly acknowledged or accepted—Justice Ginsburg, I believe, has read two or more dissents in some terms. But I believe that the public record would show that Scalia has continued to abide by it.
Maybe I’m wrong on this (in which case the premise of this post collapses). I’m not aware of any reliable record of cases in which justices have read their dissents from the bench, so perhaps Scalia hasn’t continue to abide by the standard. Or, even if he hasn’t departed from it before, perhaps that’s just happenstance.
2. It seems very likely that the Chief Justice is the author of the lead opinion in the Obamacare cases. Among other things, he is the only justice not to have issued a majority opinion from the March and April sittings. Also, he has written only six majority opinions so far this term, when nearly everyone else is at seven or eight. (Justice Thomas has written only six opinions, but he presumably was assigned the remaining ruling from the November. Justice Sotomayor is also at six, but she appears to have lost the majority in one of the October cases.)
3. If the Chief Justice were authoring an opinion upholding the individual mandate and if Scalia were dissenting from that holding, Scalia, as the senior justice in dissent, would have the prerogative to assign himself the lead dissent. I don’t see why he would pass over that option. Further, given what seem to be the relative magnitudes of the Obamacare and Arizona immigration cases, I think it highly likely that Scalia would preserve the Obamacare dissent for the one he would read from the bench. Indeed, the fact that his dissent in the Arizona case was a solo dissent (neither Thomas nor Alito joined it) makes it even less likely as a choice. Therefore, from his reading his dissent in the Arizona case, I infer (tentatively, to be sure) that Scalia is not in dissent in the Obamacare cases.
(Obviously, if Scalia is voting to uphold the individual mandate, my analysis collapses.)