Okay, I’ll say it. I predict that the plaintiffs will win by a vote of 5 to 4. Not that they should. Why?
1. While I agree with the government that Chevron deference is warranted, this doctrine is too squishy to constrain a majority of the Court. Academic research shows that Supreme Court justices don’t take Chevron very seriously.
2. And while I think the government’s interpretation is better than the plaintiffs’, I don’t think the plaintiffs’ interpretation is crazy. This sort of thing–where the relevant statutory language taken in isolation seems clear and is allowed to trump context even if context provides powerful evidence that the language was not intended–happens all the time in the courts. Whatever you think of textualism and how it should be done, the conservative justices won’t have to engage in embarrassing linguistic gymnastics to find for the plaintiffs.
3. And, finally, as I explain in Slate, justices who hate Obamacare and see it as an extension of the hated New Deal administrative state will, even if they try to be conscientious, find the plaintiff’s interpretation more persuasive. This is the well-known power of motivated reasoning. Not that I’m subject to motivated reasoning, or am I?