Now that the Department of Justice has petitioned the Supreme Court to review Florida v. HHS, the high-profile challenge to Obamacare whose plaintiffs include officials of 26 states, most experts believe the justices will take up the case this term and issue their decision next summer. This possibility has been greeted with no small amount of glee by the law’s opponents. But we should be careful what we wish for. If the Court rules Obamacare or its mandate unconstitutional, it would definitely be the ultimate “twofer” for conservatives, polishing off an atrocious assault on individual liberty and subjecting the President to a devastating defeat in the midst of his reelection campaign. But this is far from inevitable. The deciding vote will probably be cast by a justice whose opinions have been all over the ideological map.
Progressive mythology notwithstanding, Supreme Court justices don’t robotically adhere to their general ideological bent. This is why, in Bush v. Gore, the 7-2 majority that ruled the Florida recount unconstitutional included two liberal justices. Nonetheless, it isn’t difficult to imagine which way eight of the nine current justices will come down on the Obamacare question. Justices Kagan, Ginsburg, Breyer, and Sotomayor will almost certainly favor upholding the entire law, including its egregious mandate. Justices Roberts, Scalia, Thomas, and Alito will probably want to strike down the mandate, although it’s harder to predict their opinions concerning its severability from the rest of the law. Anthony Kennedy, however, is the Supreme Court’s sole remaining swing vote, and it is impossible to predict what he will do.
He has on many occasions produced opinions about which conservatives have no cause for complaint. He was, for example, not merely among the seven justices who ruled the 2000 Florida recount unconstitutional, he was one of the five justices who said that the state had run out of time to contrive an alternate method of vote tabulation. Likewise, Kennedy joined the majority in District of Columbia v. Heller, which struck down the D.C. handgun ban pursuant to the Second Amendment. Predictably, the latter decision incurred the wrath of progressives everywhere, many of whom singled out Kennedy for derision concerning a remark he had made during oral arguments about the need for “the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies.”
Justice Kennedy has also sided with liberal majorities in a variety of important cases, including the infamous Kelo v. City of New London, in which the Court permitted a local government to steal a piece of real estate from a private individual and give it to a corporation. The tragic irony in this case is that the “economic development” ostensibly served by New London’s land grab has never taken place. Five years later, the stolen property is being used as a debris dump: “Pfizer, the intended beneficiary of the land theft, walked away years ago from their development plans. Now, to add new insult to injury, the vacant lot is a dump. Literally.” In other words, Kennedy participated in a gross violation of private property rights and the pretext for this atrocious decision has long since evaporated.
Significantly, Kennedy also voted with the majority in Gonzales v. Raich, a ruling that will certainly figure in the Court’s deliberations concerning the individual mandate. This case involved Angel Raich, who had been growing medicinal marijuana for his own use on his own property in a state where this was legal. In 2005, however, the Supreme Court ruled that the federal government could prohibit him from doing so pursuant to its power to regulate interstate commerce. This decision was, as Ilya Somin of George Mason University puts it, “easily the broadest-ever Supreme Court interpretation of the Commerce Clause.” And, because Congress claimed the mandate was an exercise of its power under that very clause, the DOJ has cited this ruling in virtually every brief it has filed since it began defending Obamacare last year.
Kennedy’s record, then, is not merely incoherent. It also suggests that he believes the Constitution gives the federal government very broad powers via the Commerce Clause. If the Court upholds the individual mandate, it will increase federal power over your day-to-day life to a much greater degree than did even the Raich ruling. Whereas the latter regulates an activity, growing pot, Obamacare’s mandate regulates something you are not doing. As constitutional law professor Randy Barnett explains it: “[T]he statute speciously tries to convert inactivity into the ‘activity’ of making a ‘decision.’ By this reasoning, your ‘decision’ not to take a job, not to sell your house, or not to buy a Chevrolet is an ‘activity that is commercial and economic in nature’ that can be mandated by Congress.”
In other words, if the Supreme Court acquiesces in Obamacare’s specious justification for the mandate, it means that there are no real limits to federal power. And this is where your personal liberty will be intimately affected by Justice Kennedy’s view of the mandate. If Congress can order you to buy insurance, it can order you to do anything. As U.S. District Judge Roger Vinson put it last year, “If they decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week.” Assuming the Court does grant the DOJ’s petition, the only man standing between you and that kind of tyranny is a 75-year-old swinger from Sacramento, California. Anthony Kennedy could well be the ultimate arbiter of your personal liberty.