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The Supremes and Health Care: Second "Switch in Time"

by Mark Gabrish Conlan/Zenger's Newsmagazine Sunday, Jul. 01, 2012 at 2:09 AM
mgconlan@earthlink.net (619) 688-1886 P. O. Box 50134, San Diego, CA 92165

In April 1937 Supreme Court Justice Owen Roberts switched sides, stopped voting that minimum-wage laws and the New Deal programs were unconstitutional and got on board with the Roosevelt administration's program to save the court from progressive political attacks. Likewise, current Chief Justice John Roberts cast the deciding vote to uphold the Affordable Care Act largely to preserve the court's reputation and neutralize Democrats' attempts to make the court's Republican majority and partisan 5-4 decisions like Citizens United an issue in the 2012 campaign.

The Supremes and Health Care: The Second “Switch in Time”


Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Throughout his first term as President, Franklin Roosevelt faced strong hostility from the United States Supreme Court and in particular from a solid bloc of four Right-wing justices — James Clark McReynolds, Pierce Butler, George Sutherland and Willis Van Devanter. Believing that the United States Constitution forbade government interference with the so-called “freedom of contract,” they ruled unconstitutional much of the landmark New Deal legislation, including the National Industrial Recovery Act (NIRA) and the Agricultural Administration Act (AAA). They were particularly harsh on minimum-wage laws, which they regarded as unconstitutional attempts to undermine the “freedom of contract” workers had to agree to a lower wage from their employers. The fifth vote in most of these cases had come from Justice Owen Roberts, appointed to the court by Herbert Hoover in 1930, who in June 1936 had cast the deciding vote ruling a New York minimum-wage law unconstitutional.

After Roosevelt’s landslide re-election victory in 1936, he decided to use his political capital to remake the Supreme Court. He introduced a bill that would have expanded the Court from nine justices to as many as 15. Critics denounced the bill as “court-packing” and it went nowhere in Congress, but though Roosevelt lost the battle he won the war. Beginning with the West Coast Hotel v. Parrish decision, announced on March 29, 1937, which upheld a minimum-wage law in the state of Washington, Roberts abandoned the Right-wing “Four Horsemen” and instead began voting with the more liberal justices to rule New Deal legislation constitutional. Though Roberts had apparently cast his first vote in Parrish in December 1936 — after Roosevelt’s re-election but before the “court-packing” bill was introduced — enough people believed that Roberts’ change of heart was motivated by a desire to forestall the court-packing bill that it became known as the “switch in time that saved nine.”

On June 28, 2012 another Supreme Court justice named Roberts — current Chief Justice John Roberts — executed a second “switch in time that saved nine.” With the court once again split between four hard-line Right-wingers who wanted to throw out the entire Affordable Care Act, President Obama’s hard-fought health insurance reform bill derisively called “Obamacare” by its critics, and four moderate justices who wanted to uphold it, Roberts came up with an ingenious way to split the difference. He decided that the centerpiece of the law — the so-called “mandate” (not a word actually used in the bill) that all Americans either buy health insurance or pay a fine — exceeded Congress’s authority over the clause in Article I, section 8 (3) of the Constitution that allows it to regulate “commerce … among the several states.” But if the fine is actually regarded as a tax, then it’s constitutional under Article I, section 8 (1) that allows Congress “to lay and collect taxes.”

Why did Roberts do it? The talking-heads on the MSNBC cable TV network (where I watched the decision come in and therefore missed the initial error on CNN and Fox that the court had thrown out the Affordable Care Act) said it was likely because he didn’t want to throw out the one chance to reform a system of health insurance that has given the U.S. the most expensive health-care system in the world but one that ranks only 37th in terms of lifespan, infant mortality and other measurable outcomes. I suspect he had a different motive: a concern for the political reputation of the Supreme Court and a desire to short-circuit the Democrats’ increasingly partisan attacks on the Court in the 2012 campaign.

A little more history: by serving longer (over 12 years) than any other President in U.S. history, Franklin Roosevelt had managed by 1941 to do by sheer longevity what he hadn’t been able to do by Congressional action in 1937: pack the Court with his own appointees. The result was a revolution in which the Court generally switched from defending the 1 percent over the 99 percent, men over women and whites over people of color to using the Constitution — particularly the post-Civil War 14th Amendment — to expand civil rights, the individual right to vote, the rights of criminal defendants, women’s rights and environmental protections. But the long line of Republican presidents from 1968 to 2008 — Richard Nixon, Gerald Ford, Ronald Reagan and both Bushes — interrupted only by Jimmy Carter (who made no Supreme Court appointments) and Bill Clinton (who made two), changed all that and swung the Court back to its traditional role of defending wealth, privilege, private property and racial and gender prejudices.

The two Supreme Court cases that stuck most in the craw of progressives — and the ones that kept getting referred to in the coverage of the health reform decision — were Bush v. Gore (2000), in which the Court blocked the ballot recounts in Florida and thereby handed the presidency to Republican George W. Bush — and Citizens United (2010), which threw out century-old restrictions on the ability of corporations and wealthy individuals to finance political campaigns. Many progressives believe that Citizens United was a deliberate attempt by a closely divided and highly partisan court — five Republican appointees and four Democratic ones — to rig the political system permanently in favor of the Republican Party and the Right in general by allowing big corporate money and the expensive TV ads it finances to overwhelm all opposing voices.

The 2010 Congressional election, the first held since Citizens United, certainly turned out that way. So did Wisconsin Governor Scott Walker’s survival against a recall attempt launched by organized labor and progressives in general. And so did the race for this year’s Republican Presidential nomination, in which wealthy backers and supposedly “independent” super-PAC’s kept Newt Gingrich and Rick Santorum alive through much of the primary season — only to be swamped by the even richer and more numerous super-PAC backers of Mitt Romney. Indeed, 2012 is going to go down in history as the first Presidential election in which the incumbent, Barack Obama, is going to be outspent by his major-party opponent, Romney, both in direct campaign donations and in “independent” super-PAC campaigns.

With the Supreme Court’s prestige in tatters following Citizens United, polls in advance of the health-reform decision showed that up to 76 percent Americans believed that whatever decision was made in the health care case, it would be determined by political considerations rather than the law and the Constitution. So John Roberts did his “switch in time” on two major cases. On June 25, he joined a 5-3 decision written by Justice Anthony Kennedy striking down three of the four major sections of Arizona’s infamous anti-immigrant law, SB 1070, but leaving in place the most potentially damaging provision, the direction to law-enforcement officials that they must demand proof of citizenship or legal residents from anyone they stop if they have “reasonable suspicion” that they’re in the country without documents — which many Latinos and civil-rights activists fear will lead to wholesale racial profiling of Hispanics.

The same Solomonic “split the baby” approach was clearly evident in Roberts’ decision on the Affordable Care Act. He joined the Court’s hardline Right-wingers — Antonin Scalia, Clarence Thomas and Samuel Alito — as well as Kennedy in rejecting the Affordable Care Act under the commerce clause, but he let the individual mandate take effect as an expression of Congress’s taxing authority. At the same time, Roberts’ opinion gutted the law’s principal mechanism for expanding health insurance coverage to those who currently don’t have it. The law had required states to expand their Medicaid programs (known as Medi-Cal in California) to cover more people at a higher income threshold than they do now, and had said that if they didn’t go along they would risk losing all their Medicaid funding. Roberts said the government can’t do that; instead, under his ruling, states will be able to turn down Medicaid funding under the Affordable Care Act while still getting the money they get now to provide health care to the absolutely poorest people in their states.

The result will be exactly the kind of patchwork the Affordable Care Act was designed to avoid. If you’re a member of what’s euphemistically called the “working poor” — you have a job but it doesn’t pay enough for you to afford individual health insurance, and your employer doesn’t or can’t afford to cover you either — your access to health care will depend largely on whether Republicans or Democrats run your state. The same Republican governors and legislatures who thought they were striking a blow for “freedom” and “individual responsibility” by turning down federal stimulus money will gladly turn down the Medicaid expansion, while at the federal level the Republicans have already committed to getting rid of the whole law if they keep the House, win the Senate and Mitt Romney is elected president.

The contrast between the two major parties couldn’t have been more obvious from the statements both Obama and Romney made just after the court announced its decision. Romney spoke outdoors from a crude platform with a sign stuck on the front of it saying, “Repeal and Replace Obamacare” (more political B.S. because the Republicans haven’t shown any interest in replacing it with anything) and he said little more than, “If you want to get rid of it, elect me.” Obama — who has seemed oddly cold and uncomfortable in impromptu speeches before — this time hit the ball out of the park, speaking from the heart and using Ronald Reagan’s approach of talking about a specific individual who’s already being helped by the Affordable Care Act. Romney spoke to abstract generalities; Obama touched the heart and reminded people that, even if they tell pollsters but over 2-to-1 margins that they hate “Obamacare,” they not only like but are counting on benefiting from a lot of what’s actually in the law.

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