Before this week, the well-being of tens of millions of Americans was
at stake in the lawsuits challenging the Affordable Care Act.
Now something else is at stake, too: The legitimacy of the Supreme Court.
Nobody knows how the justices will rule. And nobody can know, not
even the justices themselves. On Friday morning, perhaps by the time you
read this, they will meet privately to take their first vote. More
often than not, this first vote determines the final verdict. But there
are exceptions and Anthony Kennedy, on whose decision the outcome
presumably depends, has a reputation for long deliberation and changes
of heart—particularly in major cases like this one.
That’s good. With the result apparently in doubt—smart money still
says the chances of the full law surviving are about 50-50—Kennedy
should think long and hard about how he wants the Court to rule. So
should Chief Justice John Roberts, who appeared more skeptical of the
government’s case during oral arguments but nevertheless indicated that
he, like Kennedy, understood the government’s premise—that health care
was a special market, perhaps requiring special intervention.