Since the retirement of Sandra Day O’Connor, Swingin’ Anthony Kennedy has been the swingingest swinger on the Supreme Court, the big Numero Cinco on all those 5-4 white-knuckle nail-biting final scores. So naturally court observers have been paying close attention to his interventions in the ObamaCare oral arguments. So far he doesn’t sound terribly persuaded by the administration’s line:
“The government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in a very fundamental way.”
As John Hinderaker wrote at the Powerline blog, “In that last observation, Kennedy seems to be channeling Mark Steyn.” Which is true. As I wrote in National Review only two or three issues back, “I’ve argued for years in these pages that governmentalized health care fundamentally transforms the relationship between citizen and state in ways that” – and here’s the bit Justice Kennedy isn’t quite on board with yet – “make it all but impossible to have genuinely conservative government ever again.” So I’m naturally heartened to hear him meeting me halfway. This was one of the highlights of a week that a shellshocked Jeffrey Toobin, crawling out from under the rubble of the solicitor general’s presentation, told CNN viewers was “a train wreck” for the government’s case.
And yet, and yet… If you incline to the view that Obamacare is a transformative act, isn’t there something slightly pitiful about the fact that the liberties of more than 300 million people hinge on the somewhat whimsical leanings of just one man? I mean, Kennedy seems a cheery enough cove, but who died and made him the all-powerful Sultan of Swing? “It is a decision of the Supreme Court,” explained Nancy Pelosi a few years back in more congenial times for the Democrats. “So this is almost as if God has spoken.”