Jonathan Adler wrote a post at Volokh asking why “legal elites” made such bad predictions about how the ObamaCare argument would go. So far, I haven’t seen anyone ask if one of the results of that blindness was the Obama Administration rules forcing Catholic organizations to purchase health insurance that provides contraceptives, and even abortificants (Plan B). “Swing Justice” Kennedy is a Catholic who is very concerned about “liberty”. If the Obama Administration was aware a month ago that they desperately needed his vote to let ObamaCare live, and that it was going to be tight, at best, for their side, would they have gone ahead and announced that they were going to use ObamaCare to force every Catholic School, food kitchen, hospital, etc. to violate its principles? Would they have announced that the final regulations would go into effect in May, so that the Supreme Court is getting appeals for protection from ObamaCare while the Supreme Court is finalizing the decisions and votes on whether to throw out ObamaCare?
What will the effect be on the 5 Catholic “conservative” Justices? Will they look at the Obama Administration’s assault upon religious liberty using ObamaCare, and say “let’s just kill the whole thing, so we don’t have to deal with this”? If they strike down the individual mandate, and strike down community rating and guaranteed issue, and strike down the Federal Government’s power to define “minimum insurance standards”, what’s left? Also, if they strike down the whole law, then they don’t have to try to answer if the Medicare expansion is “coercive”. Perhaps they want to answer that question. But if they don’t, “kill it all, let the voters settle it” seems like a smart way to go.