individual justices making the decision whether obama wins. if he wins that takes the whole conversation off the table. it eliminates the topic that the republicans would like to beat obama up on. and if justice scalia of all people say it's okay to have this ball care, that shifts the conversation. julie: they say it will be justice kennedy who will be the swing vote on this. >> i agree. it will be kennedy. we don't know which way he's going to go on this. i don't know. i'm going too ask my legal scholar friend arthur aidala. >> are states doing what the federal government supposed to do. are the state laws usurping the federal laws? it will probably be along ideal