That's my long shot prediction.
The conventional wisdom holds that Obamacare is in serious jeopardy, partly because of a less-than-stellar defense of the law by Solicitor General Donald B. Verrilli at oral argument.
Obamacare will rise or fall depending upon how the court deals with the following questions: 1) Does the mandate that everyone purchase health insurance change the relationship between citizens and the government in an unprecedented way; and 2) If the government can force you to buy health insurance, is there anything they can't force you to do?
The argument placed liberals and conservatives in untraditional roles. Arguing for the law (the liberal position), proponents said that requiring everybody to purchase health insurance was the responsible thing to do. Doing so would ensure that fellow citizens would not have to pick up the tab for unpaid bills at the emergency room or elsewhere, when unforeseen events occur. Opponents of the law (the conservative position) say liberty trumps everything. They want to be free to not insure themselves against catastrophic costs that others will have to bear. Their approach seems to be saying "I want to be free to make you less free."
Constructing a 6-3 Win
There should be four sure votes to affirm Obamacare: Bryer, Ginsburg, Kagan, and Sotomayor. There are three sure votes to hold it unconstitutional: Alito, Scalia, and Thomas. Kennedy, a Reagan appointment, is viewed as persuadable by either side. Chief Judge Roberts is a Bush II appointment and, under ordinary circumstances, would be considered a safe vote against Obamacare. These are not, however, ordinary circumstances.
A 5-4 defeat of Obamacare with Republican-appointed justices voting in the majority and Democratic-appointed justices voting in the minority, would extend the gridlock and paralyzation that is endemic in the body politic. Do Chief Justice Roberts and Justice Kennedy really want to be a part of that? Do they want that as their legacy?
The Chief Justice is the first among equals. He has an institutional responsibility to lead the court. That responsibility is more pronounced when the two other branches of government have each other in a death grip.
If the Chief Justice is in the majority, he can assign the writing of an opinion to himself. A narrowly-drawn opinion should bring Justice Kennedy with him.
Much of the time, the country runs itself. From time to time, it needs real leadership. In extraordinary times, it needs a statesman.
Mr. Chief Justice, take your guidance from Simon and Garfunkel:
Sitting on a sofa on a Sunday afternoon
Going to the candidates' debate
Laugh about it, shout about it
When you've got to choose
Ev'ry way you look at it, you lose.
Channel your inner Joe Dimaggio and do the right thing. Go big. Make the Court great again.
Note: Wednesdays Wars is going on Spring Break until April 18th, 2012.