I saw Howard Dean on Fox News Sunday.
He was saying that it would be a victory for the President if the Supreme Court Justices strike down the individual insurance purchase mandate and uphold the rest of Obamacare. We've come a long way from when liberal commentators were assuring us that the legal case for Obamacare was a slam dunk. Now we have Howard Dean pretty much begging the Supreme Court to uphold part of Obamacare and hoping he can spin the partial survival of the law into a political win. Smugness has been replaced with panic.
The panic is premature. I take it as a given that only Anthony Kennedy knows how he is going to vote on Obamacare. And maybe not even he knows. And even if he thinks he knows, he might change his mind. I've been rereading Jan Crawford Greenburg's excellent Supreme Conflict.
The book won't help you predict what Kennedy will do on the mandate, but it might make your confusion better informed.
From the oral arguments, Kennedy clearly seemed to think that the insurance purchase mandate was an unprecedented and fundamental expansion of federal power under the interstate commerce clause. He was skeptical that the interstate commerce clause gave Congress the power to force citizens to contract with a private company to purchase a particular class of product. He also seemed skeptical that, if the Supreme Court consented that Congress had this power in matters of health insurance, the power could then be cabined to only health insurance and not cell phones, broccoli, burial insurance, or whatever other product Congress imagined. Every attempt by the Solicitor General to construct a "limiting principle" was quickly demolished. This is possibly because neither the Solicitor General, nor the administration he represented, nor the congressional majorities who voted for the law believed that any such limiting principle was necessary. The result was a group of badly thought out bad faith arguments that collapsed under questioning. Before liberals get too upset with the Solicitor General, they should remember that he would have fared even worse if he had been more honest and argued something along the lines of "Hell yeah the Congress can mandate that Catholic Charities purchase aborted fetuses by the dozen as a way to reduce premiums for government-mandated abortion insurance. The Supreme Court said so. Where? It was that case with the wheat or the weed, or the national bank. I dunno."
So what is Kennedy going to do? I think some of it will come down to Kennedy's self-image. Greenburg quotes Kennedy as saying "I try to accommodate more of the precedents in a more case-by-case approach than does, say, Nino [Scalia] or Bill Brennan." I think that Kennedy's self-image has some major reality problems when you look at his votes and opinions on the death penalty and social issues, but it is still his
self-image. If the conservative Supreme Court Justices (and especially the careful and prudent John Roberts) can convince Kennedy that striking down the Obamacare mandate does not mean striking down (even in part) New Deal-era precedents like Wickard,
then Kennedy might vote to strike down the mandate.
On the other hand, Greenburg writes that Kennedy "pays attention to the social and political fallout from the Court's work, and frequently winds up in the middle, looking for that elusive compromise position that will resolve the most divisive either-or cases." Kennedy must know that, if he votes to strike down the mandate, he will be cursed by center-left dominated institutions to his grave and beyond. So he might put aside his principles (to the extent he has any or understands those he thinks he has), and try to find a "compromise" that will maximally salvage his reputation with every side and maybe accommodate his principles a little too. One can imagine Kennedy talking himself into a "compromise" where he votes to uphold the mandate and conservatives get a little eyewash about how Congress only has the power to impose purchase mandates on health insurance - until Obama appoints another Supreme Court Justice. Heh, heh.
Liberals and conservatives each have plenty of reason to chew antacids until the Supreme Court announces its decision.