What the Supreme Court Must Do

I am inclined to believe that the federal health care law, including the "individual mandate," is constitutional. I can't see how it "fundamentally changes the relationship between individuals and the government," as Justice Kennedy suggested in a question from the bench during oral arguments. It seems like another regulation to me, and one that the government can impose under the commerce clause. The Court ought to rule in its favor.

But the Court must rule unanimously or almost so. This is the real test of Chief Justice Roberts' tenure, and I hope he knows it. Whether the law passes constitutional muster or not may make the difference in President Obama's term, but it probably will not affect the presidency as an institution. If Americans (like me) see yet another 5-4 decision, with the justice split along apparent partisan lines, however, the Supreme Court will be further damaged for the long term.

Especially after the particularly ridiculous decision in Bush v. Gore, in which no justice followed the principle he or she had articulated through the rest of his or her career, the Court has appeared no more disinterested or neutral than any of the other horribly divided political institutions in this country. Roberts must lead here, not as a partisan, but as a Chief Justice. He must find consensus.