Posted by: David Offutt | July 4, 2012

Plutocracy: The New Roberts Court and the New Gilded Age

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.

Chief Justice John Roberts may have secured his role as the deciding vote in future 5 to 4 decisions.

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.

Justice Anthony Kennedy has probably permanently sided with the radical-reactionaries on the Supreme Court.

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.



  1. ” the reasons he gave didn’t make any sense . . . Even more bizarre was his contention that health insurance does not pertain to interstate commerce ”

    Exactly. Roberts weakened the Commerce Clause and strengthened state’s rights. He set the clock back to 1850. Mr. and Mrs. Ned Penny would heartily approve of the Roberts ruling.

    I predicted long ago that the conservative court would rule in favor of for-profit corporate health care. The FIRE sector (finance, insurance, and real estate) had financed Obama’s campaign and in turn, Obama gave the corporations what they wanted, while throwing his base under the bus. On the day of the SCOTUS ruling, the stock of the largest hospital corporation, HCA, jumped up 10%. MISSION ACCOMPLISHED ! ! !;range=5d;compare=;indicator=volume;charttype=area;crosshair=on;ohlcvalues=0;logscale=off;source=undefined;

    The next step will be “mandating” that seniors buy private health insurance to replace the soon-to-be-dismantled Medicare, as Paul Ryan has proposed. Then SS will be phased out and workers will be “mandated” to buy into private retirement savings plans. Wall Street will be enriched while the working class will be enslaved, and it will all be perfectly legal, thanks to Roberts and the Democratic party.

    Already in some parts of the country, municipal water systems have been sold to private, for-profit corporations who then charge residents an arm and a leg. Public roads are being replaced with private, for-profit toll roads. Louisiana is phasing out public schools and instead using taxpayer money to pay for segregated religious academies. Chicago has sold its parking meters to foreign investors and NYC is about to do the same.

    Privatization of government services is one of the cornerstones of Neoliberalism as supported by Milt Friedman and the Chicago School of economics. The fact that alleged “liberals” are cheering the weakening of the Commerce Clause and the expansion of forced privatization is a sad reflection on how the “left” in this country is ideologically bankrupt.

    If SCOTUS had struck down the mandate, we would have been forced to go back to the drawing board on health care, and single payer would have been the likely outcome. True, the GOP House would not allow that to happen at this time, but Republicans will not be in charge forever. As it stands, the Democratic party has become the Republican party of Ronald Reagan. The Democratic party of FDR is dead, not because the New Deal failed, but because Democrats sold us out.

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