Justice Anthony Kennedy is no swing vote. He is a lockstep conservative vote, no different from Scalia, Alito, and Thomas.
I initially didn't focus on who wrote the primary conservative dissent. When I found out it was Kennedy, I was flabbergasted. Just take a look at some of these statements:
As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers, see United States v. Butler, 297 U. S. 1, 65–66 (1936). Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development.What? Did Justice Kennedy just articulate the crazy wingnutter view that Education, HHS, and HUD are all unconstitutional, and only exist because activist courts in the past corrupted orginal intent to permit such a thing? Really?
If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce ClauseFederalist No. 33? One of the darlings of the Tea Party, for its excoriating language concerning the federal government making "tyrannical use" of its powers?
becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.”
The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).
And this, in response to the tax argument:
Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.Uh, Justice Kennedy, what in the heck do you think happened at the ballot box in 2010? You think that the ACA had nothing to do with all those Democrats losing, and all those Tea Party nutjobs getting elected? What world are you living in?
I could go on and on, but this is pretty much the clincher. In response to the severability argument (where Kennedy finds that there is no severability clause, such that one unconstitutional clause invalidates the entire statute:
The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that thisOh my -- liberty is at peril if we uphold this act of Congress? Call out the militia!
case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less
obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by
our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it. For the reasons here stated, we would find the Act invalid in its entirety.
Not to mention the fact that his entire dissent adopts, in whole measure, the "Constitution in Exile" theory -- that we've strayed far, far away from original intent, and that everything done post-Lochner (at a minimum) is invalid, including every piece of New Deal legislation (and yes, that means Social Security too).
Seriously, I am absolutely flabbergasted that Kennedy, who was considered the moderate swing vote, authored this piece of Tea Party garbage. This dissent is perhaps more shocking than Scalia's political broadside in the Arizona immigration case, because at least I expect political hackery from Scalia. But again, the idea that Kennedy is any kind of swing vote should be dead and buried today.