Coming so close to the 4th of July, the U. S. Supreme Court’s second favorable ruling in three years on the Affordable Care Act was like a birthday gift to the nation. Millions of Americans will be able to keep their insurance, and the cost of health care in America will probably continue to decline. Also, it was good to see Justice Anthony Kennedy break from his flirtation with right-wing extremism and once again give Chief Justice John Roberts some competition over who really controls the court.
I could never find anything in the Affordable Care Act that was remotely unconstitutional, so my questions in 2015, as in 2012, were always these: Would the court overturn the law for purely partisan political reasons? Would John Roberts be willing to be the chief justice who destroyed the legitimacy of the court?
In 2012, twenty-six state attorneys general apparently believed he would and challenged the law. When John Roberts became Chief Justice in 2005, he inherited a court that had already conspicuously moved into promoting Republican politics (Bush v. Gore, 2000), and he continued that dangerous trend in rulings like Citizens United v. FEC, 2010, which essentially replaced our democratic-republic with a plutocracy.
So why did Roberts not cooperate and trash the Constitution again for the good of his party? Before the case was heard, it was presumed that Justice Anthony Kennedy would support the health care bill, which was patterned after “Romneycare” in Massachusetts and an earlier proposal by the Republican think-tank 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 surprisingly came out against it.
I already had my doubts about Kennedy’s vote. Before the Citizens United decision, the court was the Kennedy Court, not the Roberts Court: the court consisted of four moderates, one conservative (Kennedy), and four radical-reactionaries. It was Kennedy who was the deciding vote on 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.
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 workers, the middle class, the poor, and minorities over the past hundred years and to prevent any new gains like the Affordable Care Act. They must, very importantly, also remove as many obligations 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 wrote that political contributions by the rich and powerful “do not give rise to corruption or the appearance of corruption.” 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 was hard to imagine Kennedy’s ever returning to his conservative role.
In the 2012 health reform case, Chief Justice Roberts 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, so he broke with the wishes of his Fox-Republican-TEA Party. His was the fifth vote that saved the Affordable Care Act. So at least for a while, it was the Roberts Court instead of the Kennedy Court.
The absurd case against “Obamacare” this year involved semantics: what did the word “state” mean? Worldwide, “the state” normally means “the nation.” King Louis IV famously said, “I am the state (France).” When Congress wrote the health law, each member knew exactly what was meant. They didn’t write “a particular state” or “one’s respective state.” They merely promised that individuals could get subsidies for policies on insurance exchanges “established by the state.” It clearly didn’t matter who created the exchange.
This issue was so trivial and such a no-brainer that it was shocking that four justices agreed for the court to hear the case. We probably will never know whether it was Roberts or Kennedy who provided that fourth vote – or what his motive was. I suspect it was Kennedy, who wanted to redeem himself for his 2012 “against” vote. Regardless, both of them joined the four moderates for a 6-3 verdict that acknowledged that Congress intended to make it easier for people to get health insurance, not harder.
So, Mr. Kennedy, welcome back to your former conservative self. Hopefully, you will stay that way. Being a radical-reactionary didn’t suit you, and it certainly didn’t help the nation.
by David Offutt
A version of this essay was published July 24, 2015, in the El Dorado News-Times as a guest column.
Note: This is an updated version of an earlier essay that was published only on this website in July 4, 2012.