With all the new ways we can observe, share and debate the progress of the case – and with everything that’s riding on it – June’s decision will arguably be the most-anticipated court decree in American history.
Decree may be the most apt word, too. One justice – Anthony Kennedy – may decide the case for all of us if he is, as expected, the swing vote. Commentator Charles Krauthammer called Kennedy potentially “the reigning monarch of the United States; he’ll decide one way or the other what our future is going to be and what our Constitution is going to look like.”
And if the justices don’t overturn the law requiring all who are able to buy health insurance to do so, what won’t the government be able to command us to do?
Indeed, conservative justices wondered precisely that during oral arguments this week. Once having produced a fiduciary and policy interest and a constitutional authority to compel us to buy health insurance, the conservative justices asked, could the government not think it wise for everyone to have burial insurance (since it sometimes costs the government when folks don’t) or to buy broccoli or to have cell phones? And on and on and on?
“What is left?” asked Justice Antonin Scalia. “If the government can do this, what else can it not do?”
The answer is clear: A government that can order its citizens to buy one thing in the public interest can force them to buy other things as well. All that is required is a sufficiently enlightened and patriarchal government, and an emasculated Constitution.
At such a point, citizens cease being citizens and become subjects.
As Justice Kennedy remarked in court Tuesday, the individual mandate to buy health insurance “changes the relationship of the federal government to the individual in a very fundamental way.”
“It is not an exaggeration,” writes the Wall Street Journal, “to say that the Supreme Court’s answers may constitute a hinge in the history of American liberty and limited and enumerated government. The justices must decide if those principles still mean something.”
And in saying that one’s choice not to purchase health insurance is an affirmative act capable of being regulated by the government, the Wall Street Journal writes, “the government is claiming it can create commerce so it has something to regulate.”
We’ve heard of such things before, but always in countries where citizens are unprotected by a U.S.-like Constitution.
The question now is, how long will we be thusly protected? Until June?
The political implications are nearly as momentous as the societal ones. This law is Barack Obama’s signature achievement – and this week, CNN legal analyst Jeff Toobin said the case “looks like a train wreck for the Obama administration, and it may also be a plane wreck.” How an adverse ruling in June might affect Obama’s supporters and opponents is anyone’s guess.
One thing is certain in all of this: It’s clear our liberties are hanging by a thread, particularly if they hinge on one Supreme Court justice.
How that should affect November’s election is also clear. If you’re a fan of freedom, you now know for sure which way to go.