Election Watch: How will Justice Kennedy vote?

By Luke Freedman

Justice Anthony Kennedy

Tuesday's oral arguments were a cruel two hours for the Obama adminstration and supporters of the health care bill. The four key votes in the case, Chief Justice Roberts and Justices Alito, Scalia, and Kennedy, seemed all too willing to accept the petitioner’s claim that the individual mandate represents an unprecedented and troublesome expansion in governmental power. At the start of the day, numerous legal experts believed that the Obama administration's arguments would prevail easily; now, all bets are off.

An especially interesting wrinkle in the case has always been Justice Kennedy and Justice Scalia's embrace of broad federal powers in Gonzales v. Raich. In the 2005 case, which in many ways parallels the one currently before the Court, the two Justices joined the more liberal wing of the Court in ruling that Congress had sufficient power under the Commerce Clause to prohibit individuals from growing medicinal marijuana for private consumption.

Liberals hoped that this ruling might compel even the very conservative Justice Scalia to uphold the law. Unfortunately for them, that no longer appears likely. Undeterred by the spectre of Raich, Scalia all but announced in oral arguments that he was going to vote to strike down the indvidual mandate.

Justice Kennedy was a bit less transparent. He declared that the "mandate fundamentally changes the relationship of a citizen with the government" but near the end of oral arguments seemed to entertain the idea that the consequences of the uninsured on the national health care system might make this case unique.

Reading the tea leaves in these cases is often a fruitless task, but, since I couldn't resist, I went over the transcript from Gonzales v Raich and compared the two Justices statements from oral arguments to the votes they ultimately ended up casting. If Justice Kennedy — or perhaps even Justice Scalia — appeared sceptical of the constitutionality of the law but eventually upheld it, perhaps they might do the same thing in the current health care case.

Despite ultimately siding with the federal government, Scalia did draw attention to several perceived holes in their argument.

“I mean, in these other... in these other cases, Congress presumably wanted to foster interstate commerce in wheat, in Wickard v. Filburn. Congress doesn't want interstate commerce in marijuana. And it seems rather ironic to appeal to the fact that home-grown marijuana would reduce the interstate commerce that you don't want to occur in order to regulate it. I mean, you know, doesn't that strike you as strange?”

However, far from contradicting his vote in the case, Justice Scalia's line of questioning actually makes a lot of sense given the concurring opinion he ended up writing. While Justice Stevens's majority opinion relied heavily on rationale of Wickard v. Filburn, Justice Scalia's concurrence focused more exclusively on the Necessary and Proper clause. In this context, it seems doubtful that Scalia had a change of heart between oral arguments and voting, but rather that he was trying to convince the other Justices of his own rationale for upholding the government's regulation.

At numerous other points, Justice Scalia appeared outwardly supportive of the federal government's position. He mentioned that the prohibition of marijuana appeared similar to an existing prohibition on the possession of endangered eagle feathers. In that instance, Congress had explained that there was no way of determining whether the feathers came through interstate commerce or not. Obamacare supporters who still cling to the irrational hope that Justice Scalia might uphold the mandate probably won’t take much solace in the oral arguments from Raich. Justice Scalia showed a sympathy for the Bush administration’s argument that was wholly absent from his line of questioning in the health care case.

Justice Kennedy was more coy. Many of his comments in Raich were clarifying questions: asking the lawyers to expand on statements they had made. But the few viewpoints he did express offered cautious support for the federal government's position. Once, he reminded Bush’s solicitor general of a case that would support their argument. He also hinted several times that the mere possession of marijuana might constitute economic activity, and that its "fungibility" made it difficult to establish whether it came through interstate commerce or not.

Kennedy voiced concern on Tuesday that the individual mandate could justify a whole host of new federal powers, but he never expressed similar worries over allowing the federal government to regulate private marijuana use within the home. All indications are that he sees the Obama adminstration's argument in the current case as at least somewhat weaker than the Bush administration's argument for a blanket prohibition on marijuana. In Justice Kennedy’s eyes, Raich may be more or less in line with traditional congressional regulation of economic activity, while Obamacare is an unprecedented use of Commerce Clause power.

Of course, none of this means that Justice Kennedy is a sure bet to strike down Obamacare — only that he sees it representing a somewhat troubling intrusion on indvidual autonomy and state sovereignty. I could see Justice Kennedy going either way. He obviously seems troubled by the idea of government mandates, but, as others have pointed out, the outcome of the case might well hinge on whether he thinks he can uphold the law and still identify clear limiting principles that would restrain the government in the future.

29 March 2012