Disclaimer: I am NOT a lawyer. And unlike Obama, I make no pretense at being a constitutional scholar. And I have never, ever stayed at a Holiday Inn Express.
After reading and listening to several superb conservative commentaries on the Court decision on Obamacare, it seems to be a consensus that the four dissenting Justices ( Alito, Kennedy, Scalia, and Thomas) all but excoriated Roberts for his flawed opinion.
Prior to the release of the decision, the conventional wisdom/smart money from all sides of the political spectrum was that, as in so many previous 5-4 decisions, it all came down to which side of the bed Kennedy got up from on any particular day. Often deemed to be the second single most powerful person in the country, Kennedy was viewed as somewhere between a libertarian and a “squish”, depending on how he voted on the particular issue before the Court.
If indeed the dissenting opinion ( to which all four Justices contributed) is as scathing as has been described, and which appears to be somewhat outside the norm for Justice Kennedy ( based on his past opinions); then is it reasonable to wonder if Roberts’ last minute change of heart and mind. and resulting incomprehensible opinion, might finally have brought Mr. Justice Kennedy to his senses?
Conservatism has long, for the most part, found common cause with libertarians, except for those occasions when we on the right wonder if they have truly and finally lost their minds.
Winston Churchill ( reportedly while stepping naked from his bath in the presence of FDR) remarked that “nothing quite concentrates the mind like the realization that one is to be hanged in the morning..”
There are many cases of great import that the Court is expected to take up, and decide, in the next term. Possibly Kennedy’s mind has indeed been concentrated and focused by the realization that Roberts has in effect performed a legal lynching of our Constitution.
The libertarian in him must thus be truly appalled by this decision. If so, he may finally realize that the Court can’t continue to split hairs. Yes, elections are vital, and they do have consequences, and we must defeat Obama this November, but the Court can no longer hide behind a flimsy pretense of wanting to avoid appearing “politically motivated.”
If Roberts’ decision has finally caused Kennedy to find common cause with his four conservative brethren, then we may well see truly amazing decisions in future terms. And if Roberts reverts to the norm, then these will be all be 6-3, possibly 7-2 decisions.
And all this may well occur BEFORE President Romney gets to appoint, and a GOP Senate confirm, one or two justices.