It looks like the Affordable Care Act is headed to the Supreme Court, thanks to a rash of conflicting lower court opinions.
Court kremlinologists in the media and legal communities, basing their prognostications on the previous records of the nine justices (you get a gold star if you can name all nine without cheating, and no…Judge Judy is not one of them), have already decided that “Obamacare” will be decided by a vote of 5-4, with the battlefield being the heart and mind of the Swing Justice, Anthony Kennedy (far left in this group portrait).
Why they say they know this is because the case turns on how you view the reach of government in individual lives, and at what point you feel that reach becomes an overreach. The much-reviled “individual mandate,” which is at the core of the battle, is either within the purview of the Interstate Commerce Clause of the Constitution, or it’s an unjust intrusion, imposing a penalty on people for not doing something.
We pretty much know how all the justices feel about government reach, except for Kennedy, who appears to be either wishy-washy or remarkably unfettered by ideology, depending on whether you agree with his vote on a case you care about.
On another court-related issue, when gay marriage finally works its way up to the Supremes, the social conservatives had better be careful what they wish for. The same libertarian beliefs that may impel Justices Alito, Scalia, Thomas and Roberts to deep-six Obamacare might just cause them to decide that government has no business telling individuals whom they can choose to share their lives with.
Maybe I'm dreaming, but a unanimous decision seems within the realm of possibility.