The string of appellate victories may not predict how the Supreme Court will decide the case. But some legal observers believe the recent decisions lay out a road map for preserving the law that may appeal even to some of the Supreme Court's more conservative members.Polls continue to show that the majority American opinion is hostile to Obamacare with 54% of likely voters in an October Rasmussen poll somewhat favoring repeal while 42% strongly favor repeal of the law as opposed to 39% somewhat opposing repeal and 27% in strong opposition. Because SCOTUS is a non-elective office, justices can consider the cases free of public and political influence - at least, that was the Founder's thinking. In real life, we are all pretty sure how Justices Kagan and Sotomayor, Justices Thomas and Kennedy will vote. There will be metaphorical blood.
"They show that smart, principled conservatives can decide this is within the broad reach of Congress' power, even if they might think it is bad policy," said Richard Garnett, a law professor at the University of Notre Dame who was a clerk to former Chief Justice William H. Rehnquist.
When the states and the National Federation of Independent Business filed suit in March 2010, they questioned whether Congress, under the guise of regulating commerce, could place an unprecedented requirement on Americans to buy health insurance starting in 2014.
The so-called individual mandate was designed to spread risk more broadly and control insurance premiums, enabling the federal government to prohibit insurers from denying coverage to patients with preexisting medical conditions, a key promise of the law. Without a mandate, some Americans might avoid buying insurance until they got sick, dramatically driving up premiums.
The insurance requirement became the focus of the litigation and initially sparked a partisan split among trial judges. But more recent rulings from appellate courts around the country have significantly muddied the liberal-conservative divide.
Only the U.S. appeals court in Atlanta has struck down the mandate, in a 2-1 decision with one Republican appointee and one Democratic appointee in the majority. They called the law "breathtaking in its expansive scope."
Two other appellate courts with prominent judges appointed by Republican presidents have categorically rejected the legal attacks on the insurance mandate.
The life of Indigo Red is full of adventure. Tune in next time for the Further Adventures of Indigo Red.