The Supreme Court has been accused of legislating from the bench at least since 1803, when John Marshall outmaneuvered Thomas Jefferson in Marbury v Madison to establish the power of judicial review. But the current Patient Protection and Affordable Care Act Cases represent the first time of which I’m aware that advocates are appealing directly to the politics of the justices – and to one justice in particular. For despite all the parsing of Justice Scalia’s concerns about broccoli, the hitherto inconceivable idea that the Court might actually declare the health care law unconstitutional appears to rest with the pen of one man: Anthony Kennedy. In the conventional wisdom, the court’s even split between ideological conservatives (Roberts, Alito, Scalia, Thomas) and liberals (Ginsburg, Breyer, Sotomayor, Kagan) leaves Kennedy as the decider – and both sides are aiming their arguments at his often fuzzy concept of “liberty.”
Anthony Kennedy decided who should be president in 2000 in Bush v Gore. Having him now decide the future of health care seems a lot of power for one man who has never been elected to any public office. It will also further erode the Court’s image as the neutral arbiter of the law.
Corrections: Two corrections from Friday’s blog: one a typo (“renewal energy” should have read “renewable energy”); the other an inexcusable slip. The administration’s estimate of the impact of a one-cent rise in the pump price of gasoline is $220 million in increased quarterly profits, not $220 billion. Even in these times, being off by a factor of 10 to the third power is not a rounding error. I am thankful to a reader for questioning the number. He said, and I totally agree, that whatever credibility I have is based on not making sloppy errors. So, please let me know whenever I do.