In less than 24 hours, we’ll know whether the Constitution still means anything to at least 5 members of the Supreme Court or whether the rule of law has been replaced by the rule of men (and women.) It’s hard to overstate the importance of this decision for if the Supremes can sing aloud and for all to hear that the Commerce Clause can regulate economic inactivity, then we as a nation will cease to be the grand experience our Founding Fathers envisioned: a people ruled by the immutability of law, not the whims of men.
I’ll cut to the climax and then fill in the prologue: I believe that Chief Justice Roberts will pen the opinion and the chips will fall as follows: the Individual Mandate will be struck down 5-4; the Medicaid portion of the case will be upheld 5-4; and the Individual Mandate will be declared severable from the rest of the law 5-4 (despite the fact that Congress not only did not include the clause, it took it out of the final version. So much for abiding by “Legislative Intent.”)
Now for the “whys.” Why Roberts? Because the senior jurist in the majority gets to assign the case (with the Chief Justice always considered “senior.”) We all know that the 4 liberal jurists didn’t even have to think or listen or read the arguments made; they were always going to be “yes” votes. Similarly, the odds of Scalia, Thomas and Alito voting to uphold the Individual Mandate rank somewhere up there with the odds of Eric Holder actually enforcing the laws he was sworn to uphold. That leaves Kennedy (and possibly Roberts).
There were two ‘big’ cases before the court this term: the Arizona immigration case and ObamaCare. There’s no way that if Roberts and Kennedy are in the majority on both of them that Roberts defers to Kennedy on both of them (Kennedy penned the Arizona decision). I believe that this means that Kennedy and Roberts voted the same on both cases (remember that the 3 areas of the Arizona case which were struck down were 5-3 with Kagan recusing herself and Roberts and Kennedy voting to overturn.)
Why? Because we know there are 4 “yes” votes to uphold ObamaCare. If Kennedy was a “yes” and Roberts a “no,” then Roberts would’ve written the majority opinion in the AZ case because he knew that Kennedy would be writing the opinion on the ObamaCare case because he (Roberts) would be in the minority (add to that the fact that Roberts likes spreading opinions around and that he has written precious few opinions since March/April). All the “yes” votes are less senior than Kennedy and the odds of the egotisitical Justice Kennedy giving up his place in history to one of the feckless four ranks up there with the odds of a former member of the Federalist Society finding the regulation of coerced economical activity permissible under the Commerce Clause (actually, I’d believe the odds of Roberts completely jettisoning every legal principle that he’s ever professed and voting “yes” are more likely than Kennedy passing up this opportunity to ensconce himself in history.)
So I believe that the Individual Mandate is dead. Why not the whole thing? And why not the Medicaid cramdown? Short answer? Because Kennedy is an egotistical, eye-on-history, chablis & brie party loving weasel. Longer answer? Because Kennedy is going to want to look “nuanced” and “reasonable” and the price that he extracted from Roberts in the horse-trading that, unfortunately, always goes on in these things was that he’d only vote to overturn the Individual Mandate if the rest of the law was upheld so as not to look “activist” and “political” (what do you expect from a guy who gives more credence to international and foreign laws than he does to the Constitution he swore to uphold?).
And what to make of Justice Scalia’s rather owly demeanor this week? Personally, I believe that the reason Justice Scalia was a one-man, cynical, vituperative wrecking ball Monday wasn’t because he’s beside himself that the Individual Mandate was upheld (which has been opined by many…and fearfully considered by yours truly); I believe that he took the extremely unusual step of objecting from the bench to Kagen’s opinion on the overturning of state laws allowing life without parole sentences for juveniles, and absolutely went off against the Obama Administration’s evisceration of Arizona’s sovereign rights, because he’s furious that the federal government is going to be allowed to jam unfunded mandates down the throats of sovereign states whether they want them or not.
And, in less than 24 hours, we’ll see whether I need to find something better to do with my time than devine tea leaves.