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The states-rights argument could appeal to those justices whom the equal protection argument leaves cold.
"They think it's too difficult to administer a viable claim," Professor Epstein said of those justices.
"But at least five of those justices feel pretty passionate in the law.
Those justices added: "The identity of the loser is perfectly clear.
Four of those justices also rejected a "conspiracy" offense and said military tribunals were only for international law war crimes.
All five of those justices were appointed by Republican presidents, while the four justices expected to vote to uphold the health care law were all appointed by Democrats.
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Five of those six justices are likely to attend on Tuesday night, with Justice Kagan, who joined the court last year, replacing Justice Alito.
Justice Stevens did not name those new justices.
"Knowing that he could appoint all those Supreme Court justices.
Those two justices signed Justice Stevens's opinion, as did Justices Anthony M. Kennedy, David H. Souter, and Ruth Bader Ginsburg.
Those three justices were all relatively new to the court at the time, he wrote.
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