I would give credit if I could remember where I read that one disconcerting aspect of the Affordable Care Act case is that whichever side wins will claim it was in the bag all along. The winners will say that there was never any doubt their side was right and that the losers are constitutionally illiterate mugwumps.
Actually, we didn’t even have to wait for the case to be decided. On Friday, Rush Limbaugh, apparently buoyed by the tenor of the questions asked by Supreme Court justices, already was saying that those who favored the act hated the Constitution and were basically stupid morons.
The reality is that conventional wisdom from the start was that the case would wend its long way through the courts and then finally be settled 5-4 by a divided Supreme Court, with Justice Kennedy casting the deciding vote. Now, after all the cases and lengthy oral arguments before the Supremes, conventional wisdom remains that the case will be settled 5-4, with Kennedy casting the deciding vote. The case will be as close as a case can be ; neither side will have room to gloat.
I’ve always tried hard to believe that thorny legal questions are decided by judges’ understanding of the Constitution, not their political ideology. But that is becoming harder and harder to do.