Posted Tuesday, Dec. 14, 2010, at 4:52 PM
to the attorney general of Virginia, and learns that Cuccinelli would like the DOJ to join him in kicking the health care lawsuit straight up to the Supreme Court. He also thinks that Elena Kagan would hear the case and not recuse herself, as some pundits have speculated she might. But Cuccinelli is confident that Justice Kennedy, the swing vote, would rule against the mandate.
CUCCINELLI: [I]f you look back through his opinions on matters related to structural federalism — the balance of power between the federal government and the state governments inherent in the structure of the Constitution — as recently as his concurrence in the Comstock case on May 17, you will see a continuation of his consistent protection of structural federalism. One important thing to consider about how Justice Kennedy might view this case is to think about what would happen if we lost. The notion that federalism is over if we lose becomes suddenly very important, because the historical indication is that Justice Kennedy views that as critically important.
FOSTER : "The tie goes to freedom," right? That’s supposed to be his philosophy .
CUCCINELLI : I feel pretty good about anybody who says that. That’s what this case is about. There’s no question that if we lose it, there’s a shrinkage of liberty. And it’s a lot broader than people think, or have even discussed. That would be a sad, sad outcome. The Founders would turn over in their graves.
Here's the full decision, for reference.