Some First Thoughts on The Supreme Court’s Health Care Decision

                The Supreme Court declared most of the administration’s health care legislation (whose proponents even  are now beginning to call “Obamacare”) to be constitutional.  This surprised many, me included.

 Having followed the case as best I could, I was not so surprised that the legislation was declared constitutional, or that the decision was 5-4, which was almost universally expected, but that the “swing” or decisive vote came from Chief Justice John Roberts, not the generally less far right  Republican, Anthony Kennedy.   But from the better internet analyses, not from either the generally conservative networks and CNN or what one can call charitably the ultra-right Fox News (I don’t get the left liberal MSNBC, commercial media’s concession to its most overlooked market because my “provider has made it a premium station, i.e., I have to pay more to get it) I have gone back to reading between the lines to understand what has happened.

                First the Supreme Court is a political court as it always has been.  The Court has a thin 5-4 right -ultra right majority, with the ultra right having the upper hand.  Reagan appointee Antonin Scalia is the leading ideologue of the ultra-right, joined by George HW Bush appointee Clarence Thomas, and, George W. Bush appointee Sam Alioto and ,usually, Bush appointee and Chief Justice John Roberts. Reagan appointee Anthony Kennedy has usually been seen as a more traditional conservative Republican today, (a very relative term since he would be clearly  an ultrarightist by Supreme Court Standards from the 1940s through the mid 1970s).

  In some respects Roberts especially  is much more in the tradition of pre New Deal era Justices, a politically connected corporate lawyer interpreting law selectively in the interests of corporate and upper class power,  seeking to defend an existing system based on very limited regulation and virtually no social legislation, rather than  seeking to tear down existing laws to limit federal power in those areas   He is much less of  an angry old ideologue than Scalia or a self-justifying narcissist like Thomas; nor is he a  a colorless organization man like Alioto or even an old fashioned  regular Republican political appointee like Kennedy.

  Roberts appointment by Bush the Younger  as Chief Justice, with his Federalist Society, country club Republican background, was clearly a victory for the far right.  So why did he fail to join his usual three amigos plus Kennedy to kill the legislation?

                He probably would have done that had those three amigos not scuttled the “compromise” which he, from sources that I have consulted,  appeared to have crafted, a “compromise” which would have killed the individual mandate part of the legislation(this largely crippling the principle of universal coverage) while maintaining most of rest of the legislation.  But his usual allies were not interested in any compromise 

 Instead, when  one reads the dissent to the decision, it is clear that four justices were calling for the complete elimination of the legislation and really much more than that. They were seeking something like a Dred Scott Case on both the issue of health care and federal power, which Roberts in all likelihood realized might have disastrous consequences for both the Court’s rightwing majority and the Republican party in the upcoming elections

 The four “dissenters” were citing the tenth amendment to the constitution to proclaim the federal government had usurped its power over the states, a slap at seventy five years of federal social legislation and one hundred and twenty five years of federal regulatory legislation.  They were also insulting both Congress and the administration by saying that what the administration was contending was not what Congress had enacted and that Congress itself had been duped by the President and his party.

And, as if we were back in 1936, they were mocking Justice Ginsburg’s references to legislation like Social Security and unemployment insurance as “wonderful things” (their sarcastic comment) that federal mandates had established.  They also stood narrowly on the Commerce clause which the Reagan Bush judiciary have, along with states’ rights and the concept of original intent, advanced as a barrier against both effective federal regulation and new social legislation.

 While Roberts no doubt agrees with most of these positions, he is shrewd enough to realize the dangers that this kind of decision would have meant for the Supreme Court’s one vote rightwing majority and for the national Republican campaign in a presidential election year.

The Republican party, in existence for less than two years, used the Dred Scott case as a major organizing tool against a Democratic party dominated by slaveholders and  those willing to appease slaveholders.  Franklin Roosevelt used Supreme Court decisions against both federal New Deal and state legislation as a major organizing tool to not only insure his re-relection in 1936 but hand the Republican party the worst defeat in their history both  up to that time and afterward.

                Since Justices are appointed for life, the Supreme Court is also a continual cockpit of personal power struggles.  Roberts, I suspect, was asserting his authority over Scalia, whose skill at antagonizing Justices is legendary, and whose longevity on the court, along with Kennedy and possibly Ginsburg for health reasons, is not expected to be that long

  But, his break with Scalia put him I would speculate  in a difficult  political position on a Court that is always political first and foremost. 

In order to stop those who wanted to declare the entire bill unconstitutional and make the decision into a manifesto against both the Obama administration and federal regulatory and social legislation since the administration of Grover Cleveland, he had to bow to the Court’s four non conservatives and vote to accept the entire legislation.  He did this by a maneuver that some would consider disingenuous, others clever—that is, to re-affirm the conservative position on the Commerce close, which the Obama administration sought to use to turn against the conservatives, on the individual mandate, but affirm on the issue of the federal government’s power to tax.

                As I see it, Roberts was playing a game of chess, maneuvering to prevent the Obama administration and the Democratic party nationally from using the decision to run against the Republican national campaign on the health care issue, realizing that a Romney administration would be in a position to strengthen the Court’s rightwing majority, while a second Obama administration would in all probability end it. 

And Roberts also realized that the legislation whose constitutionality he accepted was not legislation remotely approaching social security and unemployment insurance, which his ideological colleagues mocked as “wonderful things.” It is not remotely comparable to the health care legislation one would find across the border in Canada or pretty much in the rest of the developed world. 

The power of the insurance companies, while substantially  reduced in terms of the damage that they can do in refusing coverage, is still there and, if the history of capitalism is any guide, they will probably adapt to use the legislation to make more profit and make large numbers of people pay more out of pocket expenses.  Nor,even with the huge increase in the number of insured, will, given the exemptions,  the legislation cover everyone(some forecasts are that it will continue to leave  as many as 26 million without coverage)

 Roberts may even hope that the legislation will serve as a pacifier for progressives  and a new barrier against a social security based Medicare like national health care system with private for profit insurance companies out of the picture and the federal government using its power to control prescription drug prices—the system that with various national variations is in existence through the developed world.

That is what all of us who continue to fight for a genuine system of comprehensive public health care, whether we call it Single Payer or Medicare for All, must both fear and fight against.

                The Affordable Health Care Act was a limited but significant step forward in an area of U.S. social policy that has been an international disgrace since the 1950s---pointed to even by conservative politicians as an example of the kind of capitalism that to which they did not wish to return.  Hopefully, it will function as a beginning, not an end to the struggle in the U.S. to establish a national public health

Norman Markowitz