As the Supreme Court begins to hear arguments about the constitutionality of the Affordable Care Act, I have a sick feeling in the pit of my stomach. I know that pretty much every legal scholar is predicting that the Court will uphold the law, but I wonder.
If I had to bet money, I’d probably agree with the consensus and predict an 8-1 decision in favor of Obamacare, with only Clarence Thomas objecting. But I also remember Bush v. Gore. And I think about how long and hard conservatives have worked to get a functional majority on the court. Right now, they seem to have a functional majority about half the time, with Justice Kennedy siding with big business at every opportunity, but not following along on many social and religious questions.
In this case, siding with big business means siding with the individual mandate, since the mandate provides millions of new customers to the insurance and pharmaceutical industries, and also makes the whole health care reform work financially for the insurers. Striking down the mandate would be a major blow to big business and cause all kinds of confusion and chaos. For these reasons, I foresee Justice Kennedy upholding the mandate.
If Alito and Roberts realize that the administration is going to win, they’ll probably fall in line. And Scalia will probably try to be as silent as possible since he won’t want to ruin his reputation among the wingnut faithful.
But if for some reason Kennedy is inclined to become a radical, I expect the rest of the conservative Justices to join him in striking down the individual mandate, and maybe even gutting the entire law. Conservatives have been waging an ideological war to the death, and the Court is their greatest weapon. Will they fail to use it now?
I can’t be certain. What I do feel confident about though is that Kennedy’s replacement on the Court will be the most influential Justice in a century or more. If a Republican replaces Kennedy, Roe v. Wade will be struck down. And you can go down the list of cases where Kennedy has sided with the liberals in 5-4 cases to see how things will change for the worse.