The Supreme Court's Dark Horse

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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
.

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