My read of the Obamacare oral arguments at the Supreme Court is that it comes down to Anthony Kennedy and that Kennedy is facing a tough calculation. It looks like
Kennedy is leaning in the direction of thinking that the Obamacare federal health insurance purchase mandate is an unconstitutional expansion of federal power, but that he is also desperate to find some kind of an out that will let him uphold both the mandate and whatever idea of constitutionally limited government Kennedy carries around in his head.
Well if he thinks the federal mandate is unconstitutional, why not just say that it is unconstitutional? I think some of it has to do with status rewards. One of the reasons I was pretty confident that the House Democratic leadership would attract enough wavering members to pass Obamacare was because liberal-dominated institutions would be able to provide safe landing spots and decades of ego rewards
to members who voted for Obamacare and lost their next election. Lose a House seat, gain a professorship, an ambassadorship, or a Profiles In Courage Award. I think Kennedy might be looking at the flip side of this liberal cultural power. The center-left has been desperate to gain government-run health care for decades. Kennedy must know that if he strikes down the Obamacare mandate, he is going to go down as a historical villain in all of the institutions controlled by the center-left. This will be much bigger than his decision in Bush v. Gore
and his opinion in Lawrence
won't gain him any clemency for his crime of smashing the center-left dream of government-run health care. If he votes to strike down the mandate, who-knows-how-many law professors, NPR legal commentators, and New York Times editorial writers will abominate Anthony Kennedy's name to his grave and beyond. He shouldn't care about that, but I fear that he does. I fear that the constitutional argument over Obamacare won't be won on the legal merits. The fate of Obamacare might come down to a contest between Kennedy's intuition that the federal mandate is unconstitutional, and his dread of the backlash in liberal-leaning institutions like the legal academy and the mainstream media.