Don't Try to Game the Supreme Court

 | Mar 27, 2012 | 4:38 PM EDT
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Memo to those who are predicting the demise of "Obamacare" on the basis of the judicial questioning during today's Supreme Court arguments over the constitutionality of this landmark legislation:

First, the Supreme Court is one of the great black boxes of our time. Anyone who has tried to game it from the questions the judges ask has often been totally wrong. The judges play things close to the vest, and the votes of so-called swing justices, in this case Justice Anthony Kennedy, can't be predicted with any certainty.

I have attended many Supreme Court hearings in my time and studied the rulings of the court at law school. For the life of me, I couldn't predict a thing from the inquiries. If anything, they were misdirection plays.

Further, we are hearing lots of talk about how hospitals might be winners if part of the legislation is struck down and might be the losers if others parts are ruled unconstitutional. Same goes with the health maintenance organizations. For example, I heard people saying today that you have to buy WellPoint (WLP) because of Kennedy's tough questioning of the government, and I had to laugh. I wouldn't even try to hazard a guess about what might happen to WellPoint off of a couple of pointed questions by anyone.

Now, I am not denying the importance of this ruling. Just the opposite. If Obamacare goes down, you can raise almost every company's earnings numbers for 2013. If it is approved, numbers will be slashed. More important, if the court finds Obamacare constitutional, then the best plays will be outfits like ManpowerGroup (MAN) and Kelly Services (KELYB), temporary-help plays. I think there will be tons of companies who will go temp, simply to avoid the costs of hiring full-time employees.

So, you can wager all you want. I would rather bet you on which raindrops get to the windowsills first. Yeah, it's just that much of a loser's game.


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