The 5-4 decision by the Supreme Court to uphold the Affordable Care Act was a total surprise to just about everyone. Certainly if you had listened to the oral arguments of the justices as they heard the case argued, you would have been sure that Obamacare was a goner. Justice Kennedy joined with Alito, Scalia, and Thomas. But why did Chief Justice John Roberts side with the majority?
The presumption that there would be a liberal defeat was reinforced by other decisions that the court made. Three other major court cases were decided by the Supreme Court in this session. The first case concerning Arizona's anti-immigration legislation can see both sides claiming some victory. I however look at the court's decision to overthrow state penalties to private employers who hire illegals as an obvious kiss to those businessmen who love what cheap, compliant, illegal labor can do for their bottom line profitability. And the "May we see your papers" provision that was upheld is certainly a sop to states rights advocates.
The Montana case where the court doubled down on its Citizens United decision is of course obvious in its nod to the power of big money in this country. The least publicized case, Knox v. Service Employees International Union Local 1000 is explicitly anti-union as it substantially weakens the power of labor unions to obtain funding for political activism. The contrast between the Montana and SEIU cases highlights the double standard in the level of freedom unions (as opposed to billionaries) should enjoy as far as political activism is concerned.
All of these decisions widely led the pundits to conclude that part or all of Obamacare would be repealed. And yet, here we are with an unusual 5-4 split in favor of retaining all provisions of the ACA legislation. Why is that?
CONSERVATIVE JUDICIAL ACTIVISM ON THE SUPREME COURT IN CONTEXT WITH THE BIG PICTURE
Having just read Robert Reich's blog on the Obamacare decision, I find myself in high agreement with what he said. It's Reich's thesis that the four conservative ideologues of the Roberts court have engaged in an orgy of right wing judicial activism that is at least as substantial as anything changed by the multiple decisions of the Warren Court. Bush v. Gore and Citizens United v. the Federal Elections Commission are as monumental in their impact on American life as anything else the court has ever ruled on in its entire history.
Reich basically says that there was a conscious decision by Judge Roberts to align with the liberal four, as he wanted to have the court avoid a serious loss of its legitimacy. There's certainly truth in what he says, but I would contend that no matter which way the court reacted there would be a huge percentage of the American public unhappy. Listening to Rush Limbaugh's diatribe today against the court is certainly an indication that the right will not give up on this issue and is deeply disappointed with the ACA ruling.
And a right wing ideologue would no doubt be extremely unhappy if he'd heard the oral arguments on the case. I listened to the entire Supreme Court's oral deliberations on the issue, and I was taken with how many times Justice Antonin Scalia channeled Rush Limbaugh in his fixation about brocolli. The right wing spinmeisters had a field day with comparing health care with a government mandate to buy brocolli. And all of this telegraphed that the conservatives of the Supreme Court have all probably been avid watchers of Fox News. With Justice Kennedy siding with the conservatives, why wasn't there a 5-4 decision saying that all parts of the ACA were unconstitutional?
And here we come to Chief Justice Roberts. As critical and skeptical about the ACA (one could even say that Roberts vocalized hostility towards it in the orals), I believe that Roberts came down in favor of Obamacare because a repeal of the law would have dire consequences for American capitalism. In looking at the supporters and detractors of the legislation, I didn't see any hostility towards the ACA coming from the Fortune 500. All of these companies are richly capitalized, and they already have health insurance coverage for their employees.
It's notable that the chief financier of the measures against the ACA came from the American Federation of Independent Businessmen. This is an advocacy group primarily made up of tire stores, muffler shops, and other mom and pop operations. Even though businesses of less than 50 employees were basically exempted from the ACA, a local scion in any small city in America could face some out of pocket costs in contributing to his employees' health insurance under the new legislation.
If the court had ruled against the ACA -- not only would hundreds of thousands of citizens suddenly see their health insurance ripped away, but it's likely that thousands of people would be sentenced to death by an adverse ruling. Also, it's widely accepted that a loss of subscriber population for the insurance companies would dramatically increase their costs. As insurance companies would be forced to raise their premiums, fewer and fewer people would take out health insurance.
Not only would health insurance premiums and overall health costs substantially rise, but going back to the bad old days of pre-ACA would mean that the trend for the health sector to eat out a bigger and bigger slice of the gross national product would continue. In a fragile economy with high speed trading on Wall Street, an adverse Supreme Court decision could have a substantial adverse impact in the medium term on the prosperity of the country. Ultimately the very existence of the health insurance companies could have been challenged if there was no other way out of this situation, except for the elected officials to adopt a single payer system.
While John Roberts is probably as much of a lover of Rush Limbaugh and Bill O'Reilly as Clarence Thomas or Antonin Scalia are, I don't think that the Chief Justice wanted to see the court made a whipping boy for any economic downturn. As much as he sympathized with the Tea Party and the dittoheads, he was willing to throw them under the bus for the sake of his multinational masters.