I think Laurence Tribe is just naive here:
Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.
Yes. That's what we're predicting. By "we," I don't just mean liberals, I mean people like Virginia Attorney General Ken Cuccinelli who are focusing on Justice Anthony Kennedy as the one person whose vote needs to be won. They wouldn't be fighting this battle if they didn't think they could win it.
Maybe it's a matter of coming to political consciousness around the time that Bush v. Gore was decided, but I just find the faith of legal elites in the notion that ephemeral institutional norms of the high court are going to prevent the ACA ruling from being an almost entirely partisan affair to be misplaced. Remember when the comity of the Senate was supposed to save Democrats from two years of a permanent filibuster?
I'm not saying the justices are just simple partisans. To borrow Barack Obama's speech justifying his decision to vote against Chief Justice Roberts' nomination, "both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult." The constitutionality of the individual mandate is a 5 percent case, even though it shouldn't be.
