As a long-time SCOTUS junkie, I have never seen anything like the white-knuckle anticipation for the Obamacare decision. Whatever the outcome, I think the Court is 9-0 about this principle of appellate jurisprudence: Get out of town fast! You can be sure that not one of these nine jurists will enjoy being in the glare of the public after this Thursday, and they will try to limit access for their own sanity.
Unlike some commentators, however, I think the mandate is still 50-50. I was disturbed by Kennedy joining the dissent on the Southern Union Company v. U.S. decision. The Court had affirmed a broad sixth amendment protection for the citizen in Apprendi, and later cases. I simply can’t understand why Kennedy would see the need to cut back on that in a case that is clearly an abuse of judicial discretion. Significantly, to call the majority’s decision “ahistorical” is to suggest that there is an approach to the health care mandate that finds an implied confirmation based on repetition alone. Just because the Court has repeatedly, and improperly, extended the commerce clause should not mean that its scope has actually increased.
But I don’t mean to advance any legal theory in this post. I am writing here, in haste, to express an optimism — shaky, at best — about the growing willingness of many citizens to confront their leaders with their dissatisfaction with the government. This dissatisfaction is currently unfocused, and there’s little agreement on what people want that would replace the rampant paternalism that seems to be Washington’s only work product today. But it has to start somewhere, and opposing the mandate is as good a place as anywhere else. What I’m saying here –and about this I am very confident — is that if Thursday’s decision upholds the mandate, that this will definitely NOT put the genie back into the bottle. There is something refreshing, even liberating, about openly discussing the limits of the government’s authority. The Court’s decision on Thursday, whatever it is, will serve as the conclusion of this opening chapter. But the debate will continue, in a major way, in the Senate confirmation hearings of the next nominee to the Supreme Court.