Scalia Says Court Can’t Be Bothered To Read Obamacare: ‘You Really Want Us To Go Through These 2,700

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19. I think this is in reference to the severability issue

Which is to say, how interwoven is the individual mandate to the fabric of the entire bill? Does the legislation fall completely to pieces if the individual mandate part is deemed unconstitutional? Or can the Act remain largely intact, but without the individual mandate? What parts of the Act have to go if the individual mandate goes?

That would require a pretty thorough sifting of the Act and its various parts. Scalia is basically saying he'd prefer not to have to do that, and I can't say that I blame him. Is the Court obliged to render an opinion on each and every part of the Act and its connectedness to the individual mandate, or is that a task that Congress should have to take up? Congress, of course, could object to an Eighth Amendment violation causing them to rewrite legislation without any clue about how the Supreme Court might rule about any of the choices they might make. That's pretty unrealistic, too.

As to what sort of task the Court took on when it granted cert in the first place, there have been contradictory rulings in the lower courts as to various sections of the Act. The only body that has the power to iron out those differences is the Supreme Court.

It's always a dicey business predicting how a court might rule based on what happens at oral argument. Unanticipated issues might crop up late in the process, and color how the judges perceive the issues long after the lawyers have gone home. Talking it over with the other judges, one or another judge might change his or her mind. Even the very process of writing the opinion can cause a judge to reconsider how the ruling goes. Considering all these factors, it's a fool's game to try to predict the outcome of this very complicated legislation. There are so many moving parts, the Court might just get to the point where it decides that while they would have written parts of the Act differently, Congress has the power to write and enact such legislation, and decline to pass judgment on portions they disagree with.