U.S. District Judge Roger Vinson, a Reagan appointee who sits with senior status in the Northern District of Florida, is expected to rule Monday on the constitutionality of the Patient Protection and Affordable Care Act. There are now 26 states which have joined the lawsuit in Judge Vinson's court-- a few were added just recently-- and it is a virtual lock, based upon his comments in court last month, that the judge will strike down the core of the federal health care measure as a violation of the Commerce Clause.

When that occurs, conservative opponents of the reform will rejoice, spinning Judge Vinson's ruling as yet another indicator of the Act's ultimate demise before the United States Supreme Court. Progressives supporters of the measure, meanwhile, will fret, not just because the judge's order creates further legal dissonance about the Act (most of the federal judges who have looked at the law have declared it valid, two have not) but because the judge's language will almost certainly add fuel to the political fire raging all across the country.

Both sides will thus likely overreact to Judge Vinson's ruling -- much as both sides overreacted to last month's similar ruling by U.S. District Judge Henry Hudson in Virginia. This is inevitable, I suppose, with so many people watching these cases so closely as they make their way up to the Supreme Court. Unfortunately, however, the laser focus upon lower-court vote-counting detracts from the only judicial vote-counting that ultimately counts here. Judge Vinson could issue a virtual Tea Party manifesto Monday -- and he might -- but it wouldn't ultimately make a bit of difference in your life or mine if it doesn't earn the support of at least five Supreme Court justices.

So the most important development on this front over the past few months isn't a stray decision here or there by a conservative trial judge. It is, instead, the pointed choice made in early January by two of the Supreme Court's most conservative justices, Clarence Thomas and Antonin Scalia, to signal to friend and foe alike where they stand on the Commerce Clause-- and almost certainly the Patient Protection Act itself. The justices chose to loudly dissent in a decision by the rest of their colleagues not to hear (and thus not to overturn) Alderman v. United States, a 9th U.S. Circuit Court ruling affirming the use of a federal statute that makes it a crime for a convicted felon to buy, own or possess body armor.

On behalf of Justice Scalia, Justice Thomas wrote:

"The Ninth Circuit's interpretation... seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguably could outlaw 'the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile on the basis that the candy once traveled . . . to the store from Hershey, Pennsylvania.' The Government actually conceded at oral argument in the Ninth Circuit that Congress could ban possession of french fries that have been offered for sale in interstate commerce." (Citations omitted).

In the ongoing debate over the Commerce Clause and the health care law, these are akin to fighting words. This is the advocacy rhetoric of the Tea Party. It is the partisan language of Sen. Tom Coburn (R-Okla.). It is the hyperbolic theme of the fiercest opponents of the Patient Protection Act. And coming as it does from the two justices -- unsolicited, unnecessary to resolve Alderman, unrepentant about its link to current political discourse -- the paragraph confirms to the world that no more than seven votes on the Supreme Court are still in play over the constitutionality of the federal health care measure. That this is not a surprise coming from these two jurists makes the development no less extraordinary -- and far more important than anything Judge Vinson can or will say in his looming order.

Thumbnail image credit: Fibonacci Blue/Flickr