Okay, it’s prediction time. We are about to head into the back half of June next week, and that means we have a two week period now during which the Supreme Court will hand down its decision in what is one of the most notorious cases that institution has ever deliberated. No, it doesn’t rank up there with Marbury v. Madison, the Dred Scott Decision, Plessy v. Ferguson or Brown v. Board of Education – but it is likely to be remembered as the most impactful decision on future public policy since Roe v. Wade in 1973 for our generation.
So here is my prediction. SCOTUS upholds the Affordable Care Act in its entirety. Now, I have read more than I wanted to of the assessments, opinions, analysis – and the all-to-irritating opinions cloaked in very weak and self-serving analysis. I have browsed through the transcripts of oral arguments presented before the Court. I watched and listened to legal scholars, former judges and elected officials from every level of government. And the one key takeaway I have from assimilating those hours of my life wasted is this: nobody at this point in history has any more inkling of how SCOTUS is going to decide than you or I.
The legal arguments, particularly those that are based upon Constitutional Law and History, I found fascinating. I wish I could believe that those arguments – on all sides of the issues before the Court – would carry the greatest weight to effecting a decision. But Supreme Court Justices are human, after all, and subject to social influences – to what degree is the subject of some very interesting (if not quite useless) analysis.
And the Supreme Court’s standing in public opinion has taken a real beating. A recent opinion poll shows an approval rating of only 41%. This has to carry some influence – regardless of the external rhetoric. But while the logical consequence would be to assume such disfavor would weigh on the side of deciding against the ACA, I think the opposite will happen. I think, in particular, Justices Roberts and Kennedy will not want to appear unduly influenced by public opinion and out of step with their historical vantage on previous decisions. I also think they quite rightly understand that their decision – in either direction – will ultimately serve as the catalyst to energize the political party disappointed in that decision. And so regardless of what they decide, the Affordable Care Act will de facto be sent back to Congress in one manner or another.
But please remember the SCOTUS decision is really a side show at this point to Healthcare Reform – particularly as reform will impact care provider organizations. This holds true for the fall elections, as well, which will be the next round of political exchange impacting the reform effort however the Court decides. At issue is when and how reform will be implemented – not the impact it will have on healthcare providers.
The underlying trends and drivers that brought us to this place in history will not abate because of a court decision or election. The population will continue to age; people will continue to live longer and be sicker longer; the available caregiving labor force will continue to face challenges keeping up with demand; State budgets will continue to be under tremendous pressure; and the world economy will continue to influence the US economy in ways that are still very unpredictable.
But it’s fun to make predictions in any event, especially since this one has had such drama leading up to it. So I’ve given you mine. What’s yours?