In the April 9th edition of The New Yorker, Jeffrey Toobin point out the worrisome sign that Justice Anthony Kennedy already doesn’t understand the health care mandate.
Consider, then, this question, posed to [Solicitor General] Verrilli by Justice Anthony M. Kennedy: “Assume for the moment that this”–the mandate–”is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?” Every premise of that question was a misperception. The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid. The forty million uninsured Americans whose chances for coverage are riding on the outcome of the case are already entered “into commerce,” because others are likely to pay their health-care costs.”
Toobin goes further in his critique, but the case is already made that Kennedy doesn’t get it, and that doesn’t bode well for the impending decision. It’s unfortunate that Kennedy is frequently referred to as a moderate, because he’s not. He’s a conservative Reagan Republican, only given our conservative activist Supreme Court, that makes him a swing vote between the moderates and the far-right wing conservatives.