I don’t understand the lack of appeal by the Obama WH. What are they thinking here.
I can think it only two things.
Either they want to get it over with before the election, taking it off the table.
Or, they are actually stupid enough to believe they will prevail.
Couple things.
One, the climate is turning harshly against the Obamacare administration. You are right, that if they anticipated a more favourable climate down the road, then they would appeal and exhaust all their court options.
However, if they believe this case is destined for the Supremes, and they lose one of the reliable liberal justices, then it’s game over for Obama.
If the case doesn’t get to the supreme court by 2012 and Obama is out of office, then the current administration can make it DOA.
So Obama’s got a rather short window of opportunity here. He needs 5 votes, and he’s got 4 in the bag right now. He’s gambling everything on justice Kennedy because that’s his best opportunity to get a favorable ruling.
The last thing that Obama wants now is say Ginsburg retiring, and having to nominate another supreme court justice during a time when he doesn’t have control over the house.
This is why he had 2 nominations in 2 years, because the liberals wanted to mitigate the damage of the 3 young conservatives. This is part of why 2012 is so important, is because it means that there are going to be a waft of retirements.
So it’s the smart move not to appeal, take your chances with the 5-4 split and go from there.