Tuesday, March 27, 2012

UPDATE: Justice Kennedy’s possible vote on individual mandate

In an earlier post, I said comments by Justice Kennedy-a key swing vote on the court—might indicate that he would side with the conservative members of the court to declare the individual mandate portion of Obamacare unconstitutional.

Lyle Denniston at Scotusblog.com says after the competition of today’s arguments, it may be premature to predict how Kennedy might vote.  Denniston writes:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.
If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government.   But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature.

No comments: