Freedom Line Blog

Okay, to all my fellow…er, my fellow Fellows of CFIF: Last chance to get in your updated predictions on how the Supreme Court will rule on ObamaCare.

I’ll see what you come up with before I reveal my hand (gee, isn’t that clever of me?) — but I WILL offer this outside-the-box scenario as a remote but not entirely-out-of-the-question possibility. To wit:

We could see a typical Kennedy “split the baby” sort of decision: the mandate unconstitutional, on narrow and tentative grounds, with a remand to lower courts to decipher some Delphic question from Kennedy about how best to separate the mandate from the rest of the law.

The good news — and this would be a stunner — is that I think there is a small chance that if Kennedy doesn’t just split the baby, but slices into about four pieces, then Justice Sotomayor might concur in part that “as applied,” the mandate is unconstitutional. If so, that would mean that while the end result could be quite a muddle and the size of the victory (in law, not politics) would be very small, the POLITICAL upshot would be huge in that even a small acknowledgement by an Obama appointee that the mandate went too far would take away some of the ability for Obama to bash the court as a campaign issue.

Granted, most people now think that Roberts, not Kennedy, will write the main decision, based on who has written what other decisions when, during this term. But it would be perfectly feasible for Roberts to write a plurality opinion rather than a majority one, while Kennedy wrote a concurrence with the narrow result of ruling this mandate unconstitutional (and Sotomayor joining in part) — so that the narrow result would have a majority, but the major reasoning would have only a plurality, with Kennedy’s concurrence actually being controlling in terms of what happens next (e.g. some sort of weird remand).

Of course, maybe somebody piped some bath salts into my room and I’m hallucinating. This is all too complicated by half. It’s probably just what happens when I/we have too much time to speculate.

On the other hand, the high court has done weird things like this before. With Kennedy in the mix, anything is possible.

NBCConnecticut.com reports:

Supreme Court Justice Sonia Sotormayor’s nomination was so controlled that the White House even approved her clothes, she told Yalies when she appeared at her 30th Yale Law School reunion on Saturday.”

Next week, the U.S. Supreme Court will rehear arguments in Citizens United v. Federal Elections Commission, a case that could reverse certain limitations on core political speech imposed by the the 2002 McCain-Feingold law and other chilling precedents.

In an op-ed published today on Human Events Online, CFIF director of public policy Sam Batkins writes:

Citizens United is the first of three cases in which interested court-watchers will have their first opportunity to observe [newly confirmed] Justice Sotomayor and get a better idea of her impact on the jurisprudential leaning of the Court.

In addition to Citizens United, the Court, including Justice Sotomayor, is scheduled to hear other high-profile cases after its term formally begins in October on issues dealing with the Establishment Clause and property rights, among others.

As Batkins notes:

Many court-watchers and scholars have reviewed Justice Sotomayor’s lengthy record as a lower court judge without really being able to predict her judicial philosophy on many of the hot-button issues before the Supreme Court. Soon, however, we’ll all be provided more clarity, at least on issues dealing with property rights, the establishment clause and political speech. 

Read the the entire op-ed here.