Coming so close to the 4thof July, the U. S. Supreme Court’s favorable ruling on the Affordable Care Act was like a birthday gift to the nation. After hearing the good news, my friend Joannie Braden (of the consulting firm of RBI Strategies and Research in Denver) asked me what my take was on Chief Justice John Roberts’ decision to join the “liberals” in the 5 to 4 vote. Short answer: After six years, it is now the Roberts Court.
I could never find anything in the Affordable Care Act that was remotely unconstitutional, so my question was always this: Would the court overturn the law for purely partisan political reasons? Twenty-six state attorneys general apparently believed it would and challenged the law. Fortunately, Arkansas was lucky to have an attorney general, Dustin McDaniel, who understood both the law and the U.S. Constitution. He resisted Republican pressure to embarrass the state, waste his office’s time, and waste Arkansas taxpayers’ money in joining them.
When John Roberts became Chief Justice in 2005, he inherited a court that had already moved conspicuously into partisan politics (like Bush v. Gore, 2000), and he has continued that dangerous trend (such as Citizens United v. FEC, 2010). Therefore, the 26 state attorneys general and the Fox-Republican-TEA Party expected more of the same. So why did Roberts not cooperate and trash the Constitution again?
Before the case was heard, it was presumed that Justice Anthony Kennedy would support the health care bill, which was patterned after “Romneycare” and a proposal by the conservative Heritage Foundation. It was also presumed that Roberts would not want to be in the minority so that he could write the majority opinion. This 6-to-3 scenario fell apart during the official hearing of the case when Kennedy clearly came out against it. I already had my doubts about Kennedy’s vote. Here’s why.
Until recently, as I have written before, I have thought of the present court as the Kennedy Court, not the Roberts Court. Before the Citizens United decision, the court consisted of four moderates, one conservative (Kennedy), and four radical-reactionaries. It was Kennedy who was the deciding vote on the 5 to 4 decisions.
The four moderates are Stephen Breyer, Ruth Bader Ginsberg, Elena Kagan, and Sonia Sotomayor. They are often identified as the “four liberals,” but anyone who knows anything about former justices William O. Douglas or Thurgood Marshall knows that these four are not liberals. They are moderates who happen to be so far to the left of the extremists on the right that they appear to be liberals. It’s kind of funny.
The four radical-reactionaries are Chief Justice Roberts and associate justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Presidents Ronald Reagan, George H. W. Bush, and George W. Bush appointed them to do one job: Turn the clock back to the late 19th century to restore the Gilded Age when the extremely wealthy – the plutocrats – had virtual control over the government and the economy. To do this they are expected to limit or remove the gains made by the middle class and the poor over the past hundred years. It is also presumed they will try to prevent any new gains like the Affordable Care Act. They must, very importantly, also remove as many restrictions on corporations and the plutocracy as possible.
The conservative justice Sandra Day O’Conner had been a moderating influence on Justice Kennedy. But once she retired in 2006, he seemed to finally remember why Reagan appointed him. In Citizens United, Kennedy joined the four extremists and ruled that money was equivalent to free speech and therefore the wealthy and corporations could provide unlimited funds in our elections. He sold out our democracy in favor of a plutocracy. He even said that political contributions by the rich and powerful “do not give rise to corruption or the appearance of corruption.” He really did! To paraphrase George Orwell’s Animal Farm, “Everyone has free speech, but the wealthy have more than others.” This ruling was so unthinkable, preposterous and egregious that it is hard to imagine his ever returning to his conservative role.
Chief Justice Roberts can now preside over the Roberts Court instead of the Kennedy Court. He can be the fifth vote. In the health reform case, he surely realized that if the court overturned “Obamacare,” everyone would know that it was for purely political reasons. The whole legitimacy of the Supreme Court as a great leveling force in our governmental system was at stake.
When Roberts ruled that the Affordable Care Act was constitutional, the reasons he gave didn’t make any sense; but there was method in his madness. Our government certainly has the power “to levy and collect taxes,” so he equated a penalty with a tax, and that’s okay. But, he also ruled that states can opt out of increasing eligibility for Medicaid; therefore, the 26 states in the case will be able to deprive at least 8,000,000 people from sorely needed insurance even though states will pay nothing for 3 years and then gradually pay a maximum of only 10 % of the cost. Even more bizarre was his contention that health insurance does not pertain to interstate commerce! This is complete nonsense, but if it is used as a court precedent, it will open up a can of worms on just about anything involving the economy and more!
Chief Justice Roberts did the right thing in supporting health insurance reform and preserving the integrity of the court but for the wrong reasons. If those in the Fox-Republican-TEA Party ever get over their apoplectic outrage over Roberts’ seeming defection, they may realize that the Roberts Court may be able to do more harm than they could have ever hoped for.