There is no shortage of learned commentary about the course of argument over Obamacare at the Supreme Court this week, so I won’t add to the pile of legal analysis. Instead, let’s just look at some political factors, and I’ll offer a couple of predictions and suggestions.
Let’s start with Justice Kennedy, thought to be the swing vote. Lots of people think Justice Kennedy is swayed by elite opinion, or the desire to be seen favorably by elite opinion. I doubt this is actually the case. True, Kennedy has voted to uphold abortion, and he cast his vote with the liberals in the abominable Kelo property rights case, but he’s also voted with the conservatives on most of the affirmative action/racial preference cases.
This should be a cause for concern for the Left. Keep in mind that Kennedy was the author of the majority opinion in Citizens United, the case the Left is still going bonkers over, comparing it to Dred Scott and other absurdities. One of Kennedy’s core values is individual liberty. His approach to individual rights is susceptible to numerous criticisms (such as not having a robust principle of natural rights at its core as Justice Thomas does), but it was at the center of his Citizens United opinion. And a key aspect of Kennedy’s CU opinion was the willingness to discard old precedents where he thought they were badly decided because of flawed history (citing an amicus brief by someone named Hayward—see page 55), poorly defended today, or badly matched to current circumstances.
As such, the key moment in the oral arguments may have been on the third day when Obama Solicitor General Donald Verilli argued that upholding Obamacare was essential “to secure the blessings of liberty.” The challengers’ attorney, Paul Clement, smacked that fat pitch out of the park:
Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.
Clement’s comment about “a very funny conception of liberty” points to the fundamental divide between Left and Right since the New Deal. FDR argued that a necessitous man cannot be a free man. This is not implausible on its face, but as a practical matter it made redistribution of wealth the central ground of modern liberalism at the expense of individual liberty. It has led liberalism to reject the natural rights philosophy of the Founding—FDR explicitly did this in his Commonwealth Club address of 1932. Hence the real divide between Left and Right today is over the meaning of individual liberty.
As Bill Voegeli and many others (Kenneth Minogue, me, etc) have argued, the liberal impulse to redistribution and social engineering has no limiting principle. Maybe the Supreme Court is about to find a limiting principle with the Obamacare case.
Meanwhile, my pal Ben Zycher points out an interesting aspect not yet noted by the shocked and stunned media mavens like Jeffrey Toobin, namely, how Justices Kennedy and Roberts, both Catholics, may have been affected by the HHS mandate that Catholic institutions must provide free contraception. Says Ben:
I wonder if the Left/Obama/Kathleen Sebelius didn’t shoot themselves in the backside when they decided to apply a chainsaw to the religious liberty of the Catholic hospitals, etc. That episode, I think, brought out in sharp relief the unprecedented degree of coercion inexorably inherent in Obamacare, the eagerness with which the Left employs it, and the thoughtlessness with which the Left is willing to destroy the institutions of civil society as they pursue their political goals.
I think there might be something to this, in which case it will reveal the sheer political ineptitude, born of typical arrogance, of Obamaland. Suddenly Justice Kennedy’s opening day concern about fundamentally changing the relationship between the individual and government starts to look much more ominous for Obamacare’s defenders.
I predict the Court is going to strike down the whole law on a 5 – 4 vote, after which the Left will go stark raving foam-at-the-mouth insane. The Left—and perhaps Obama too—will lump this decision in with Citizens United and attack the “reactionary Court” in much the same way FDR did in 1937. Of course, that didn’t end so well for FDR. Republicans should embrace this attack, and turn it around on liberals. Since a 5 – 4 split will be along party lines, Republicans should argue boldly and loudly that the result shows which party respects the Constitution’s limits on government power, and which party doesn’t. Let’s have that fight. Let’s ask people to vote on that question. Let’s run TV ads of Nancy Pelosi saying “ Are you serious?” about the constitutional basis for Obamacare.
My fallback prediction is that if Obamacare is upheld, we will see the most forceful and epic dissent in the history of the Court from Clarence Thomas. It will rank next to Justice Harlan’s dissent in Plessy in 1897 for its moral force and correctness that will come to be acknowledged over time. I wouldn’t be surprised to see the normally quiet Thomas read his dissent from the bench on the day the decision is announced. And I wouldn’t be surprised to see a “Thomas for Running Mate” boomlet before the GOP convention.
Meanwhile, John and I kicked all this around over wine and beer and sunset the other night, and here’s some highlights, concluding with John’s thoughts on my exit question, “Who’s the worser legal reporter—Jeffrey Toobin or Linda Greenhouse?”