Obamacare 6-2: Who will be Justice Defector?

Had to run some errands over lunch and flipped on the radio to see what Rush was talking about. Basically, he was rehashing this piece from the WaPo — the theory that if the Supremes come down 5-4 in favor of Obamacare, then Chief Justice Roberts — meaning to ease social tensions with a 6-2 — will go with it, so he can himself write the majority opinion:

Walter Dellinger, a former acting solicitor general and one of the health-care law’s most ardent constitutional cheerleaders, has long predicted that the vote upholding the legislation will be lopsided and that Roberts will be in the majority to write the opinion. (When on the prevailing side, the chief justice writes the opinion or chooses the colleague who gets the job.)

“The reason I think Chief Justice Roberts will write the opinion is because I think he will want to write a narrow opinion,” Dellinger said. It would recognize that there are limits on Congress’s powers, he said, but that the Constitution’s commerce clause is fully met in a law that deals with the “intimately intertwined” issues of health care, insurance and interstate markets.

Rush was gassing away about this rather redundantly, so I didn’t listen long, but I’ve heard two other theories since Tuesday, both fretting from the opposite side of Rush. They go like this: if it looks like Obamacare is going to crash and burn, a reputation-conscious, ambitious Justice Sotomayor — in an effort to be thought a potential swing vote, down the line — might see this as a safe, highly visible opportunity to demonstrate her independence.

The second theory — much more elaborate, belabored and slightly nutty, I think — wonders whether, should Obamacare flame out, Justice Kagan might join the majority in order to demonstrate that her recusal was never necessary and to reassure independent voters that, even if they are unhappy with some things, they can trust Obama to appoint Justices who are not mere water-carriers.

May I say, I thought the person who came up with the Kagan theory was going out of his way to make himself miserable.

It’s interesting, isn’t it? People who dearly want Obamacare to crash and burn are torturing themselves by obsessing on far-flung theories about how it may survive, and some who want to see it survive are making themselves squirm imagining how it may be defeated.

Such a lot of anxiety on both sides driven, I suppose by the conventional wisdom that everything is up to Anthony Kennedy.

I’ve decided to be a theologian-philosopher about it, trusting that whatever happens, God’s got a hand in it anyway, and that we’re facing a chaotic summer and election, regardless of what happens in the Court, simply because it is the unstoppable way of narrative thrusts.

Your thoughts?

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About Elizabeth Scalia