This news broke yesterday morning. My conservative friends have been expecting this since the first suit against Obamacare was filed. They all assume SCOTUS will declare it unconstitutional. I’m not so sure and Laura Ingraham, on her show yesterday as the news broke, wasn’t confident either. She has been a clerk to Appellate Justice Ralph K. Winter, Jr. and Associate Supreme Court Justice Clarence Thomas and still has a number of friends there. They are not so confident either. Why? There is one swing vote on the court…Anthony Kennedy. We can be fairly confident how the other Justices will vote. The liberal ones will vote for Obamacare, the conservative ones will vote against. Justice Kennedy is neither and that is the danger.
You can find his official biography here. You’ll note that he is from the Ninth Circuit Appellate Court in California, the same court known far and wide as the Ninth Circus. It’s true that his time there was a number of years ago and there are still a few, a very few, conservative judges remaining in that circuit court. It is arguable whether Justice Kennedy was one of those conservative judges. Many say that he was not. On the other hand, he was nominated by Ronald Reagan.
Kennedy is a wild card. He has voted both for and against various abortion laws, he is pro “gay” rights and believes that some foreign law can be considered in some cases.
Still, Kennedy’s record is more conservative than his “swing-vote” predecessor, Sandra Day O’Conner. That is a good thing. However, when it comes to the constitutionality of Obamacare, all bets are off on which way Kennedy will swing. The cornerstone of most of the objections to Obamacare is its broad interpretation of the “Commerce” clause. No one knows on which side Kennedy will fall on that.