If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.
So this momentous decision that will affect the lives of hundreds of millions of folks comes down to the whim of one old dude in a robe. Especially this old dude, who seems to be worried mostly about his historical legacy and the opinions of the DC elite.
