Of course, it is still possible that one or more of the Republican partisans will overlook their political loyalty to the GOP and their ideological commitment to the anti-government Right -- and agree with Judge Silberman that the Affordable Care Act is constitutional.
Such a justice might even think back on how the individual mandate began as a right-wing idea and thus refuse to behave as a political hack who simply switches constitutional principles based on whose name is associated with a law.
For instance, here is a Q and A by the magazine, This Week:
"Who first proposed making health insurance compulsory?"The Heritage Foundation, a conservative think tank. In the late 1980s, when Democrats were pushing to require employers to provide health insurance, the foundation started thinking about ways to achieve universal coverage without placing a heavy burden on business. Its experts soon encountered the 'free rider' problem: In a system where insurers are barred from refusing applicants with pre-existing conditions, many people -- especially the young and healthy -- would only buy a policy when illness struck.
"But if only sick people bought coverage, insurers would pay out more in doctors' bills than they received in premiums, and quickly go bust. To overcome this death spiral, the Heritage Foundation suggested that every American be required to buy health insurance, a requirement known as the individual mandate.
"Which politicians took up that idea?
"Many Republicans did in the early 1990s, after President [Bill] Clinton introduced a plan that would have forced companies to cover employees. 'I am for people, individuals -- exactly like automobile insurance -- having health insurance and being required to have health insurance,' said Newt Gingrich, then House minority whip, in 1993.
"When the Clinton plan collapsed in 1994, talk of the individual mandate died with it. But a decade later, Mitt Romney, then the governor of Massachusetts, resurrected the concept for his state health-care plan, which requires residents to buy health insurance or pay up to $1,212 in annual penalties.
"'It's a Republican way of reforming the market,' Romney said when the law debuted, in 2006. '[To have] people show up [at a hospital] when they get sick, and expect someone else to pay, that's a Democratic approach.'"
During Campaign 2008, Obama opposed the idea of an individual mandate while Hillary Clinton supported it. After taking office, Obama changed his mind because he judged that adopting the Republican approach was the only way to win passage of a health-care bill. He also favored a "public option" as an alternative to private insurance.
However, with every Republican now voting against health reform, Obama had to jettison the "public option" to secure the 60 votes needed in the Senate to stop a GOP filibuster. When the bill was signed into law two years ago, Republican state officials immediately began filing legal challenges and the Right rallied Tea Partiers and other Americans against the law's supposed intrusion on their "liberties."
It quickly became an article of faith on the Right that the law was "unconstitutional." However, the law will likely only be judged so if the five Republican justices do what a similar bloc of GOP justices did in December 2000 -- put their political interests ahead of the law.
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