Week 26: Hero – Supreme Court of the United States (or at least the majorities)

by George_East on June 29, 2015

US_HeroLast Week’s Hero of the Week Award goes to the supreme judicial body of the United States for two important decisions

There have been so many dark moments for the Supreme Court of the United States in the last decade and a half.  Ever since the disgraceful decision in Bush v Gore which saw 5 conservative justices prevent votes being counted in Florida that may (and most analysts say would) have made Al Gore the winner of the 2000 election (one of the great counter-factuals in history given the disaster of the Bush presidency, which the horrific events in Tunisia are only the latest consequence of), SCOTUS has been undoing many of the liberal victories of earlier years.

The Citizens United decision saw SCOTUS overturn campaign donation limits from corporations as contrary to free speech rights embodied in the First Amendment.  Similarly restrictions on gun ownership have been consistently struck down by the conservative majority.  Most disturbingly of all SCOTUS has even begun to demolish the protections for minority voters found in the Voting Rights Act 1965 which were a cornerstone of the end of Jim Crow laws in the south.

There was one bright moment over the past few years and that was the surprising decision in National Federation of Small Businesses v Sebelius in which the whole of President Obama’s landmark healthcare reform, the Affordable Healthcare Act, was under attack as unconstitutional.  Given the conservative nature of the Court it was expected before that decision that the ACA would indeed be struck down or that at the very minimum individual mandates would be, which are essential to make the structure of the Act work.  The decision to uphold the constitutionality of Obamacare that time hinged on the decision of Chief Justice John Roberts, a man appointed to the Court by George W Bush and who had been, until that point, a rigid conservative on the Court.   My own view at the time was that as Chief Justice he was concerned (in a way that the ultra-partisan Antonin Scalia and Clarence Thomas were not) about the reputation of the legacy of the Court which will always bear his name (the tradition in US history and legal writing being to talk about the Supreme Court with the Chief Justice as the adjective – ie the Warren Court, the Rehnquist Court etc).  Whatever the reason though, it was to be applauded as the attack on Obamacare in that case was as cynical as it was partisan.

Not to be discouraged conservative lobbying groups and think tanks came up with a further wheeze which eventually led to the case of King v Burwell which was decided by SCOTUS this week.  This (and I am not making this up) relied on a typo in one clause of the Act to provide the basis for a challenge that would have had the indirect effect of bringing the entire healthcare reform crashing down.   The direct effect of King v Burwell succeeding would have been to remove millions of people from the coverage of healthcare, the indirect effect would have been to destroy the entire reform as premiums became unaffordable.    The detail of the challenge requires a deep understanding of the architecture of the reform but would have meant that where insurance was being provided by exchanges set up by the federal government (where state governments had decided not to set up their own – mostly the case in conservative states) certain tax benefits would not accrue.  The consequence of this would have been lower take up of insurance and as a result higher premiums or even withdrawal from the market completely as the risks to the insurers became too high.

Chief Justice John Roberts again wrote the majority opinion (though encouragingly this time it was 6-3) noting that it was beyond the bounds of credibility to suggest that the whole architecture of reform could possibly turn on one sentence buried deep in one clause of the Act, which ran counter to the entire purpose of the Act.

Having survived a second Supreme Court challenge it is probably true to say that (whatever the ingenuity of conservative think tanks) that Obamacare is now judge proof.  That, of course, does not make it politics proof, but it will probably take the toxic combination of a Republican President and both houses of Congress (including a Senate super-majority) for it to be repealed.

Roberts was not though in the majority in the other big  case of the week.  In Obergefell v Hodges, SCOTUS, in one of the most important civil rights decisions since the hey days of the Warren and Berger Courts, held by a 5-4 majority that there was a constitutional right under the equal protection clause for same sex couples to get married.  Again the majority opinion was written by a conservative justice, Anthony Kennedy (who is a catholic to boot).  Although Kennedy is sometimes seen as a swing justice ideologically, in reality his decisions have over the years been deeply conservative – including in cases such as Bush v Gore.    In Obergefell though he concluded his judgment with this paragraph, perhaps the most moving paragraph in a judgment I have ever read (and I have to read the damn things for a living).  I don’t really think I can add anything to it:

Kennedy ruling on Obergefell

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