The Supreme Court's Dark Horse


| 6/29/2012 4:40:19 PM


Tags: Supreme Court, Affordable Care Act, John Roberts, Anthony Kennedy, Consumerism, Sam Ross-Brown.,

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.)

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