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The Supreme Court's Dark Horse

Supreme Court Spirals
If you were surprised by the Supreme Court’s ruling on the Affordable Care Act (ACA) on Thursday, you’re not alone. Observers had all but written off the possibility of Obamacare surviving, especially after the seemingly one-sided sessions in March. The conventional wisdom was that somewhere between the backroom deals that created the mandate and Donald B. Verrilli’s nervous defense, the ACA was finished. With most experts saying John Roberts would write the majority opinion, it was hard to see how the decision could go another way. CNN and Fox even pulled a “Dewey Defeats Truman” as the decision was being read—can you blame them for being so certain?—and were subsequently crucified for it via Twitter. For progressives, call it icing on the cake.  

But the conventional wisdom was mostly right. Anthony Kennedy’s dramatic right turn since 2005, not to mention his obsession with individual liberty, meant he would probably automatically oppose most, if not all, of the health care law. One of Kennedy’s tougher questions for Verrilli—“Can you create commerce in order to regulate it?”—underscored much of his dissent. For Kennedy, and the three justices who joined him, while not buying health insurance could certainly affect commerce, that’s not enough to justify regulation. And the mandate wasn’t the only problem. The Reagan appointee found almost nothing he liked in the ACA, from the expansion of Medicaid to subsidies for private coverage. Kennedy’s overwhelming opposition is nicely summed up in this somewhat byzantine passage on p. 62: “The next question is whether the invalidation of the ACA’s major provisions requires the Court to invalidate the ACA’s other provisions. It does.” (Here’s a link to the full decision.) As Mother Jones’ Kevin Drum argues, the Court’s reliable swing vote hasn’t been looking so centrist lately.

Had Roberts sided with the minority, there’s little doubt the law would’ve been struck down completely. And really, who didn’t expect that? Since taking over for William Rehnquist in 2005, Roberts has led the Court on a steady march to the right, where it’s increasingly seen almost any kind of government intervention in the economy with suspicion. Jedediah Purdy, a law professor at Duke, sees this as a revival of Gilded Age libertarianism, but with a 21st century consumer twist. Writing in Democracy Journal, Purdy argues that the Court has placed “a constitutional right for consumer liberty”—the right to earn and spend money freely—at the center of their legal understanding. Decisions like Sorrell v. IMS Health and especially Citizens United bring us back to an age of unlimited corporate power, when economic liberty trumped all other notions of personal freedom. In conflating advertising with argument, and consumerism with citizenship, the Court has endorsed a radical, corporate-centered vision for this country’s future.  

The ACA fight, says Purdy, is a case-in-point. Opposition to the individual mandate is grounded in “the idea that the Con­stitution must protect, even indirectly, the autonomy of the consumer [in] deciding how to spend her money.” That is, rather than define a citizen’s liberty in terms of the autonomous producer—which the robber baron-era Court did in striking down laws against child labor, among other rulings—the Court now looks to the autonomous consumer. In this way, the Roberts Court builds on an economic view of liberty, one that sees citizens as inherently free and equal individuals who have the right to earn and spend money without government interference.

That’s pretty much the line that the case’s dissent took. While the majority upheld the individual mandate as a tax, Kennedy spent a lot of time on Verrilli’s original argument—that the mandate could be justified under the Commerce Clause. Such a ruling, he warned, would “enable the Federal Government to regulate all private conduct and to com­pel the States to function as administrators of federal programs.” Such a “vast judicial overreaching,” he says, would make the Commerce Clause “a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws … [which would] spare neither sex nor age, nor high nor low, nor sacred nor profane.’” At stake are the divisions between federal branches, the sovereignty of states, and especially, individual liberty. And of course, in this case as in others, that individual liberty boils down to consumer choice.

(Ironically, the Hamilton quote—from Federalist No. 33—is a little out of context. Hamilton’s essay is mostly a defense of the Constitution’s Article 1 against “much virulent invective and petulant declamation” from those who thought the Commerce Clause and Necessary and Proper were too expansive. The “hideous monster” is their words, not a warning from Hamilton.)

So what happened with Roberts? That the most conservative chief justice in recent memory voted to save the biggest social safety package since 1965 is downright amazing. And not only did Roberts side with the liberals, his interpretation of the mandate is remarkably pragmatic, separately calling it a “penalty” and a “tax” in the same opinion. Because the Anti-Injunction Act forbids legal challenges to a tax that hasn’t yet been paid (the mandate goes into effect in 2014), the mandate is a “penalty.” But because penalizing an individual for not buying something is unconstitutional, elsewhere it’s a “tax.” Is this the same guy that wrote a concurring opinion in Citizens United? What gives?

There are a lot of theories. It was about the Court’s legitimacy, says The Nation’s John Cole. The ACA suit was, from the beginning, a partisan maneuver from the GOP’s far fringe—and even conservative lower court judges said as much. Unpopular rulings like Bush v. Gore and Citizens United have led many to wonder just how nonpolitical the Court was becoming. Striking down Obamacare would be tantamount to admitting that the justices are just as partisan as the rest of Washington. And from the beginning of his tenure, Roberts has stressed the need to see issues above party lines, adds The New Republic’s Jeffrey Rosen. The ACA decision finally let him show his true colors. Across the country, the conventional wisdom is that Washington is broken along party lines. Roberts is not about to let his Court’s respectability sink to that of, say, Congress.

A nonpartisan Court? Not so fast, say Laura Flanders and Leslie Savan, also in The Nation. Roberts may have upheld the mandate, but his ruling on Medicaid is filled with potential tripwires. Removing Washington’s ability to punish states that don’t expand the program sets a dangerous precedent for all sorts of federal programs. Not only could this put the brakes on implementing Obamacare, it puts countless other regulations and programs in jeopardy, from OSHA to education. Yesterday’s ruling let ACA stand, but it potentially made a lot of other laws toothless.   

The Medicaid issue is concerning, but not a catastrophe, says Adam Serwer in Mother Jones. While seven out of nine justices agreed on this, there was no majority opinion on why—and no limits were set, so the ruling’s impact will be small. If the feds wanted to punish noncompliant states by denying some funding—not all—that would probably be fine. What’s really important is that Roberts voted the right way for the wrong reasons. By and large, the chief justice agreed with the anti-ACA camp, especially when it came to the Commerce Clause. Like Kennedy, and like conservative activists, Roberts saw a problem with Congress regulating “inactivity,” and dismissed the idea that because everyone gets health care at some point we can force them to buy insurance. “The power to regulate commerce,” he wrote in the majority opinion, “presupposes the existence of com­mercial activity to be regulated.” Thus, he too rejected Verrilli’s most important argument, but let the law slide on the solicitor general’s second backup—the mandate as tax.

It’s hard to know exactly why Roberts made the decision he did, but it seems unlikely that he intentionally made the law unworkable through hidden traps and barriers. If he wanted to strike down the ruling, it would have been easy, and not unexpected. Rather, as Roberts notes in his opinion, the Court is mandated to find any possible route to constitutionality for a given law. So that’s just what he did. Even though he has a much more narrow view of the Commerce Clause than many previous justices, the-mandate-as-tax was pragmatic enough for him to accept. Roberts is a conservative justice, and he made a conservative ruling. It just happened that a conservative ruling in this case meant upholding a liberal law.

Which makes the result bittersweet for progressives. The decision is clearly a progressive victory, but it doesn’t change the Court’s overall trajectory. Roberts’ opinion on the ACA may well be pragmatic and bipartisan, but it is also grounded in a market-centered definition of citizenship and society that is out of touch with many Americans. “If the anti-ACA argument succeeds at the Supreme Court,” Purdy wrote earlier this year, “it will be a sharp departure from the Court’s practice in the twentieth century.” The scary thing is that’s exactly what happened. In decisions like Citizens United, Sorrell, and in the overwhelming consumer focus of the ACA ruling, the Roberts Court has revived and expanded on a century-old vision of economic liberty that threatens to dismantle many of the gains of the last hundred years.

Sources: The Atlantic, Wall Street Journal, Legal Information Institute, Democracy Journal, THOMAS, The Nation, The New Republic, Mother Jones 

Image by Phil Roeder, licensed under Creative Commons.