Your PoliticOlogy is feeling optimistic today, and has decided to give you guys some hope for the Supreme Court's ruling on the PPACA, aka the ACA, aka Obamacare, aka <palin>DEATH PANELS</palin>. If SCOTUS upholds the ruling, here's how they're gonna do it.
Also, be sure to check out PoliticOlogy's Guide To Faking Your Way Through A SCOTUS/Obamacare Convo, so you don't sound like a doofus tomorrow morning.
1. Anthony Kennedy and the Limiting Principle (Worst judicial cover band EVER): 5-4 in favor of Obamacare
The day health care was passed (#memories), someone cracked wise about how we might as well just drive to Anthony Kennedy's house right now and ask him how he feels. This comment wasn't far off the mark: Kennedy is almost certain to be the swing vote, as he has been since Sandra Day O'Connor stepped down in 2005. Unfortunately, Kennedy got to be the swing vote chair by being unpredicatible and unreadable to a Delphic degree. It's impossible to divine how Kennedy will rule about any given issue, which is either the sign of the nuanced morality we want from a sitting justice, or the erraticism that we don't.
Kennedy was somewhat hostile to Chief Solicitor Donald Verrilli in oral arguments, advancing the claim that the ACA could fundamentally change the relationship of the individual to the government, exactly the opposite the Obama administration's argument that this was just ye olde Commerce Clause in action. Why Verrilli didn't double-down on the normal, precedented nature of the ACA is beyond me, and Kennedy as well, as he was most active in pursuing what's called the limiting principle: if the gummiment can compel you ty buy health insurance, what can't it compel you to do? Blah, broccoli, blah.
Verrilli was unable to come up with a decent limiting principle, which means one of two things: either Kennedy's unconvinced that the ACA isn't an overture to complete government compulsion of all citizen action, or he's going to create a limiting principle for the government. Kennedy tends to interpret law and precedent according to his own idiosyncratic morality; he does a lot of internet outside research, squares it with his own moral code, largely Catholic, references international law more than some are comfortable with, and picks whichever horn of the case before him best matches his conclusion. Sometimes this leads to so some head-scratching decisions on, say, abortion, sometimes not; sometimes he stalwartly upholds gay rights; sometimes he seems at war with himself. But woes the person whom Anthony Kennedy does not understand.
| Related: Obamacare Goes to Court, Analysis: Well, Is This Thing Constitutional or Not? |
The same idiosyncratic morality that leads Kennedy to rule against abortion measures can provide the moral framework for the individual mandate. It all depends on how important Anthony Kennedy thinks health care is: lost in all the nonsense about death panels and big gummiment was the fact that America desperately needs health care reform. If the ACA is overturned, we can all say goodbye to any attempt at health care reform for at least a generation, and by that point the problem will have metastasized far beyond even a big government's attempt to fix it. Anthony Kennedy more likely than not understands this, and I don't think he wants to be the guy who sent America off the untreated Diabetes/obesity cliff without a rope. Which means Kennedy will author the limiting principle himself, the four liberal justices will go along with it, and you have one of those lovely 5-4 split decisions.
For the record, PoliticOlogy made this argument months ago.
Next: John Roberts and the Mandate as a Tax
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