Supreme Court justices are not supposed to shape jurisprudence for tactical ends, but in truth some of them do so repeatedly.

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[Part one of two]

The broad scope of the Supreme Court’s decision to consider the constitutionality of ObamaCare makes it more possible for the court to invalidate at least part of the law, although that same broad scope also increases the possibility for a confusing and fractured ruling that punts the biggest legal issues to a future date. Punting might, after all, serve the tactical goals of any number of justices.

Supreme Court justices are not supposed to shape jurisprudence for tactical ends, but in truth some of them do so repeatedly. For instance, if one group of justices sees, in conference, that it probably will lose on a major constitutional issue, those justices might look harder at ways to peel off a justice on the other side by finding an alternative means of resolving the immediate controversy. They could argue the issue isn’t ripe, or find a reason why the Court does not have jurisdiction or convince an otherwise opposing justice to rule on statutory grounds rather than constitutional ones.

At least two justices in the “conservative” bloc, for instance – Anthony Kennedy and Chief Justice John Roberts – are fond of avoiding major constitutional precedents. They did so, for example, in the voting rights case of Northwest Austin Municipal Utility District No. 1 v. Holder, specifically citing the principle of “Constitutional Avoidance” in order to avoid a more sweeping ruling.

It is thus very instructive that at least four justices agreed that one of the ObamaCare questions to be presented is whether court review of the law’s health-insurance mandate is precluded by something called the “Anti-Injunction Act,” which bars court review of a tax before the tax has actually taken effect. The assertion here is that even if the mandate’s associated penalty is not a “tax” for constitutional purposes (a different argument now mostly abandoned even by the Obama administration), it operates as if it were a tax for purposes of the Anti-Injunction Act. If so, then court review is premature – in other words, the high court has no jurisdiction on the matter – until the mandate goes into effect in 2014.

Curiously, two liberal judges on the Fourth Circuit Court of Appeals and conservative Judge Brett Kavanaugh of the U.S. Court of Appeals for D.C. concluded that the Anti-Injunction Act really does apply to the mandate via its IRS-enforced penalty.

Kavanaugh’s exhaustive opinion on the subject is exceedingly strained, as if he suspects that its tortured logic will be tough for reasonable people to swallow. But its effect, whether intentional or not, is to give the same cover to conservative high court justices that the Fourth Circuit gave to the liberal judges: If either side sees it is losing on the major issue of whether the mandate is unconstitutional, it could find itself more attracted to the Anti-Injunction argument in order to preclude a losing decision on the major merits.

Alternatively, the Supremes also gave themselves another option to rule on constitutionality without worrying about the Anti-Injunction Act. States also have challenged ObamaCare’s Medicaid provisions, arguing that they violate state sovereignty by effectively “commandeering” state government to do the federal government’s business. No question of taxation applies here. The scary thing for conservatives is that review of the mandate could be precluded by a 5-4 decision denying the court’s jurisdiction (with, say, Kennedy joining the liberals, following the lead of his former clerk, the same Brett Kavanaugh), while the court definitively rules, as has every lower court, that the Medicaid provisions do not violate the Constitution. The upshot would be a decision the media would report as a major victory for ObamaCare, regardless of whether a majority of justices actually would think the mandate is unconstitutional if they properly had jurisdiction.

The converse, however, also could occur. It could be that a conservative justice – Scalia, for instance, who in the medical marijuana case Gonzalez v. Raich indicated some willingness to allow expansive interpretations of the Commerce Clause (and thus, just perhaps, to allow an insurance mandate) – might not want to invoke limits on Congress’ power to regulate commerce. But he might find the anti-commandeering argument more persuasive than lower courts did. In Printz v. United States, for instance, Scalia wrote (with Kennedy and Clarence Thomas joining his majority) that “opinions of ours have made clear that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.” And: “By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for ‘solving’ problems without having to ask their constituents to pay for the solutions with higher federal taxes.” This, he said, would be unconstitutional.

How this all plays out is anybody’s guess. My own guesses will come in next week’s column.