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As 'Obamacare' faces U.S. Supreme Court test, what do the insiders say?

A protester holds a sign outside the Portland Expo prior to a visit by U.S. President Barack Obama on April 1, 2010, in Portland, Maine.

Robert F. Bukaty/Robert F. Bukaty/AP

The U.S. Supreme Court has begun hearing arguments in a crucial case that will decide whether President Barack Obama's signature health-care legislation will stand or fall.

And with three days of hearings scheduled this week – and a court ruling in June – whatever the court decides will have an impact on the presidential campaign in a year when Mr. Obama faces an uphill struggle to win a second term.

Deep dissatisfaction with the law has been pretty consistent: 52 per cent oppose Mr. Obama's Patient Protection and Affordable Care Act, according to a Washington Post-ABC News poll in early March. A New York Times/CBS News poll released Monday shows 47 per cent disapprove of the law, while 36 per cent approve.

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And while no one imagines the U.S. Supreme Court's nine justices reading the latest polls, it is worth noting that 50 per cent of likely voters surveyed by The Hill, which covers U.S. congressional politics, want to see the court strike down the health-care legislation.

And about the same percentage expect Supreme Court justices – appointed by various Republican and Democratic presidents – to be swayed by their political beliefs.

The expectation is that the court will be split 4-4 between the left and right blocs, and that Justice Anthony Kennedy – the court's swing vote – will likely decide the fate of key aspects of Mr. Obama's health-care legislation.

But what do the lawyers who have argued cases before the Supreme Court and the former clerks who have knowledge of the court's inner-workings think about how the judges will decide on the legal challenge to the health-care law?

A survey released Monday morning by the American Action Forum (aligned to the Republican party) and the Blue Dog Research Forum (aligned to the Democratic party), suggests the court is likely to uphold key pillars of the health-care law.

The survey of 43 former Supreme Court clerks – 12 of whom clerked for the left bloc, 21 of whom clerked for the right bloc, and 10 of whom clerked for the swing vote, Justice Kennedy – and 23 Supreme Court lawyers is a small but significant sample and by no means the final word on how the judges are likely to decide on the key constitutional challenges to the health-care law. But it is an interesting window in to the court from those who have considerable knowledge of the judges who will be deciding.

On the likelihood that the 'individual mandate,' which requires all Americans to purchase health-care insurance by 2014, will be struck down by a majority of Supreme Court justices on the basis of it being unconstitutional: 35 per cent of those surveyed said it was probable.

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"The only way to strike down the individual mandate would be to overrule decades of precedent going back to the New Deal," said one of the survey respondents. "That'd be a welcome step, in my view, but it's one that the Court simply won't take."

Another respondent commented: "I don't think this will be nearly as close a case as conventional wisdom now has it. I think the Court will uphold the statute by a lopsided majority."

By striking down the 'individual mandate,' some have argued that the Supreme Court justices would overturn the entire health-care law.

Only 27 per cent of former clerks and Supreme Court lawyers believed that a majority of judges would come to this conclusion, while 36 per cent of those surveyed believed that Supreme Court judges were likely to argue that the 'individual mandate' could be separated from the overall health-care law. In this scenario, the 'individual mandate' could be struck down and the rest of the health-care law allowed to stand.

The U.S. Supreme Court is also hearing a constitutional challenge to the health-care law's expansion of Medicaid, which requires states to provide subsidized health-care to 17 million low-income Americans.

Once again, most of the former clerks and Supreme Court lawyers surveyed said it was not likely that the court would rule the expansion of Medicaid as unconstitutional, whereas 19 per cent said it was probable.

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Mr. Obama's controversial health-care law has been the target of every Republican presidential candidate, all of whom have promised to repeal Obamacare if elected president.

And, in what many have described as a strategic shift, the Obama campaign has embraced the Obamacare label, with official campaign tweeting under the hashtag "#ilikeobamacare."

Last week, chief campaign strategist David Axelrod also contributed to the 'rebranding' of the law when he sent an email to supporters: "Hell yeah, I like Obamacare," read the subject line.

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About the Author

Affan Chowdhry is the Globe's multimedia reporter specializing in foreign news. Prior to joining the Globe, he worked at the BBC World Service in London creating international news and current affairs programs and online content for a global audience. More

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