judges could petition for reallergy en banc to hear the case or make an appeal to the u.s. supreme court. that's, ultimately, i think we were talking about the case, but i think that's a likely outcome. >> one way or the other get to the supreme court. let's talk about the dynamics on the supreme court. in six weeks, you're going to have the process begin for judge gorsuch. you've got a 4-4 split. but justice kennedy is often seen as a swing. what about the dynamic there? >> you're right, we don't say there's four conservatives and four liberals. we do see justice kennedy move back and forth. but you've seen chief roberts move back and back. >> obamacare. >> that's right. that's not unusual. you had justice souter who by all intents people thought he was conservative but he went around to the liberal side.