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This is what Attorney David Rivkin told me is likely to happen in court Thursday morning. Please hear our conversation from Wednesday's show here. Rivkin is a court watcher, inside the beltway big shot lawyer, arguer of the case for the 28 states in a lower court. He writes for the Wall Street Journal op ed page on constitutional issues and is a frequent guest on The Victoria Taft Show.
He believes Justice Kagan will start things off and read the opinion on the Stolen Valor case. Rivkin believes the Stolen Valor Act will go down because you can't criminalize speech-ha! hate crimes anyone?--but we'll see. He's as sharp as they come and he's probably right.
Justice Thomas is likely to take on an important decision about who has standing before the court. This is a biggie but inside baseball stuff. Something this important would not likely be given to the newbies on the court.
Then Chief Justice John Roberts will read the ObamaCare decision. He has written nothing this term and has taken on responsibility for writing the majority opinion in a case that legal scholars will parse and teach and learn from for decades to come. The ObamaCare decision is as important to individual liberty and the relationship of an individual to his government as Brown or Roe. It will determine if Americans are mere subjects or if they are Citizens.
My hope is that all of ObamaCare goes down because of the impossibility of determining congressional intent and the lack of a severability clause, but I know it's too much to hope for. That said, I think we're possibly looking at a 5-4 or 6-3 decision (hopefully with Sotomayor coming over--don't ask me why, I'm just hoping) throwing out the mandate but keeping some of the superstructure of the bill. Like a black dwarf, it's big but meaningless.
What's your prediction?