Considering the inner workings of the Court, the most important of the three justices considered "swing" appears to be Kennedy.
The Supreme Court begins hearing oral arguments today on the "individual mandate," that portion of President Obama's health care plan which requires everyone who can afford it to buy health insurance. (Those who have insurance through their employer are considered as meeting the requirement, and those who cannot afford it are presumably covered through a government program, such as Medicaid or Medicare.)
The individual mandate has a mixed legal history, having been ruled constitutional by some panels and unconstitutional by others. The Supreme Court must render the final decision, and speculation about what that will be, and how it will come about, abounds.
Predictions swing between a 5-4 decision against the mandate to a 7-2 decision upholding it. The justices who are being counted as absolutely firm in their positions are four liberals — Breyer, Ginsberg, Sotomayor and Kagan — in favor, and two conservatives — Thomas and Alito — opposed. That leaves Scalia, Kennedy and Roberts open for speculation. Dedicated court watchers have sorted through the opinions of these three and found evidence that they could go either way.
The heart of the issue is the reach of the "commerce clause" of the Constitution, which gives Congress the power to regulate commerce between states. Each of the three perceived swing justices has written opinions with regard to its meaning.
Robert Barnes, a writer for the Washington Post who follows court activity, recently discussed those opinions, looking for signs of how they might rule in this case. He also speculated on the possible impact of the opinion of Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit, whom he describes as "a former Scalia clerk and a conservative well-known to the justices."
"Sutton's court was one of two appeals panels that have upheld the health-care law in the dozens of cases challenging it. Sutton gently questions the wisdom of the law but concludes that it is within Congress's powers to make such decisions.
This is exactly what the Obama administration would like the Supreme Court to find. And just in case the justices have somehow overlooked that a conservative judge has acceded to Congress's power … [t]he government mentions Sutton 21 times."
The commerce clause has been hotly contested over the decades, a pivotal decision coming in Wickard v. Filburn, a case decided during the New Deal days of Franklin Roosevelt. A farmer was prosecuted for growing more wheat than the law allowed. He insisted that he was not engaged in interstate commerce because he did not sell his wheat but ate it, within the boundaries of his own farm. When the case went before the Supreme Court, he lost, 9-0. The Court held that his actions, however trivial, had an impact on interstate commerce even though the wheat did not enter such commerce directly. That precedent has held for more than half a century and may bode well for the constitutionality of the individual mandate.
Considering the inner workings of the Court, the most important of the three justices considered "swing" appears to be Kennedy. If he sides with Thomas and Alito, some assume that neither Scalia nor Roberts would oppose them. However, if Kennedy goes the other way, creating a majority for the mandate, Roberts might join it, perhaps to influence what the opinion says by writing it himself. (The Chief Justice determines who writes the opinion if he votes with the majority.) Scalia's past opinions regarding the commerce clause suggest that he could go along as well.
High stakes, high drama, starting this week, with a decision expected well before the election.