Health Care: Roberts Betrays Right-Wing Court Coup


In every presidential election season, you can count on the mainstream media to overwrite the trivial and underplay the essential, a double-barreled M.O. based on a reflexive reverence for conventional wisdom and an addiction to instant gratification. More specifically:

1. They undercover what is important in favor of over-blowing the immediate. Hence: let’s hyperventilate about every daily national preference poll, while giving short shrift to what the surveys show about the status of the Electoral College, and excitedly inform readers and viewers that every bump in the road – The jobs report will doom Obama! The out-sourcing story will kill Romney! — is a crucial turning point in the race, when actually not much is happening at all.

2. Campaign reporters, with the exception of the one or two who will ask dutiful questions in the debates, all but ignore the whys and wherefores of what is arguably the most significant power any president has: the appointment of Supreme Court justices, and how the differences in whom the candidate will choose as nominees shape the nation for decades into the future.

That’s our takeaway from Thursday’s surprise court decision, in which Chief Justice John Roberts sided with the center-left minority to uphold Obama’s Affordable Care Act. It’s riotous to see how the right immediately turned on Roberts —  “Roberts’s Folly!” screamed National Review while the repulsive Daily Caller blasted out “Roberts Revolts!” as conservative operative Richard Viguerie prudently compared the ruling to the Dred Scott decision — who’s finally been revealed as a sleeper socialist who’s been part of the black helicopter conspiracy all along.

To his credit, Roberts finally lived up to what he told the Senate Judiciary Committee during his confirmation hearings, when he famously compared judges to “umpires” and promised to “call balls and strikes and not to pitch or bat.”

Ironically, the other great public service Roberts has performed is to bring huge and widespread attention to exactly how politically active and purely ideological the court’s right-wing cuckoo caucus has become.

Perhaps the normally unflappable James Fallows goes a bit far in a terrific piece about the court when he describes the Scalia/Thomas/Alioto cabal’s water-carrying for the Republican Party as a “coup.”  And E.J. Dionne’s delusional demand that Antonin Scalia resign from the Supreme Court because he says so suggests that all the love he got from his California fans during his recent West Coast book junket may have gone to his head. So it’s left to the reliable Joan Walsh to put the matter more delicately in a swell takedown of the evil Scalia:

It’s becoming hard to ignore, and hard to reconcile with democracy: The man who wrote the decision making George W. Bush president, and then acknowledged it was so eccentric and singular it couldn’t be used as precedent for anything else, is at the heart of a project that began in the ’70s to remake American society by rolling back protection for consumers and workers and unfettering corporate power from its Progressive Era and New Deal regulations…

The modern American right has decided it doesn’t accept even democratically elected Democratic Party leaders, and does what it must to thwart or eject them from power. The Scalia court has become one more tool in that project, and the brash justice’s contemptuous words ought to ring in the ears of all Democrats as they head to the polls in November.  

And here we thought that that annoying ringing in our ears was just one more symptom of our steady physical deterioration. Good to know!

The best political team on television: As feckless and behind the curve the MSM is, it nevertheless is rare that big broadcast operations like CNN and Fox News are completely, utterly and stupidly wrong in reporting the news. But when you’re 100% sure how something is going to turn out, it’s obviously hard to quickly adjust to the fact that your preparations were 100% useless. (Kudos to Tom Goldstein’s SCOTUSblog which got it right almost instantly.)

In any case, while right-wingers sputter with rage and insist that Roberts’s betrayal will merely make them work twice as hard to defeat the communist, fascist, Muslim, Kenyan Obama in November, it’s worth keeping in mind that the biggest stakes in the election involve the guys and gals in the black robes.

For those keeping score at home, here are some vitals about the current geriatric ward court, which suggest the next president may have an outsize opportunity to shape the court for many generations to come:

Ruth Bader Ginsburg, 79; Antonin Scalia, 76; Anthony Kennedy, 75; Stephen Breyer, 73; Clarence Thomas, 64; Samuel Alito, 62; Sonia Sotomayor, 58; John Roberts,  57; Elena Kagan, 52.

It’s hilariously ironic to hear right-wingers – who piously supported the Supreme Court’s horrific 5-4 decision in Citizens United – complain that the ruling on the Affordable Care Act was illegitimate. “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional,” argued ersatz legal scholar Sen. Rand Paul of Kentucky.

Forget that pesky 1803 Marbury v Madison thing and the notion that, “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.”

Of course it’s almost equally ironic to listen to Democrats now embrace and defend a Supreme Court they were prepared to attack, especially when Roberts’ rationale for upholding the constitutionality of the law was to declare it a “tax,” which Democrats had fervently argued it was not.

But Republicans who hope to rally the public against this newly-branded “tax” are on a fool’s errand. As Democrat Brad Bannon explained at a U.S. News forum:

By a 5-4 majority, the court ruled the individual health insurance mandate is constitutional. Four justices (Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsberg) ruled that Congress’s power to regulate interstate commerce justified the mandate. The fifth justice, Chief Justice John Roberts, disagreed but said the law was legitimate by virtue of Congress’s authority to levy taxes. All that matters is that the justices said the mandate was constitutional. It doesn’t matter that the justices traveled on different roads as long as they got to the same place.

Repeat: All that matters is that the justices said the mandate was constitutional. That’s the essential political fact.

Do we really have to listen to this guy bray until November? Whether Obamacare (and, by extension, Romneycare) is a tax or a penalty or a thingamajig is politically irrelevant. What matters is that millions of young people can stay on their parents’ insurance policies, that pre-existing conditions won’t disqualify people from getting insurance, that large insurance pools can be created for small businesses and the uninsured, and that companies with more than 50 employees will have to provide coverage for employees – all popular provisions of the law.

The Supreme Court on Thursday gave Romney an opportunity to stand down on the issue of health care (where he has no real alternative plan) but instead the Latter Day Shapeshifter doubled down. “This is a time of choice for the American people. Our mission is clear,” he said. “If we want to get rid of Obamacare, we’re going to have to replace President Obama.”

But as David Firestone succinctly explained, Romney’s arguments against the ACA are simply false.

Much of what he said, and what he has said all along, is factually untrue. The law doesn’t add “trillions to our deficits and to our national debt.” It actually lowers the deficit, as the Congressional Budget Office has repeatedly noted. There is no evidence that it is keeping businesses from hiring. It won’t force 20 million Americans to lose their insurance – not just a made-up number but also a made-up concept. People who have insurance now will be able to keep it, as the president said today.

What it will do, and what Mr. Romney never mentions, is provide coverage for nearly 30 million Americans who lack it. That group, totally off Mr. Romney’s radar screen, didn’t come up in his speech today, except indirectly in an exceedingly vague line: “We also have to assure that we do our very best to help each state in their effort to assure that every American has access to affordable health care.”

We wonder if Romney will now redact the Courts & The Constitution section his campaign web site that says (as we write this):

As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito. These justices hold dear what the great Chief Justice John Marshall called “the basis on which the whole American fabric has been erected”: a written Constitution, with real and determinate meaning.

And thank you for that.

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There are 11 comments for this post

  1. avatar hclark says:

    Scotusblog on the eve of the decision predicted Roberts would do what he did. Here is the prediction.
    Scotusblog. http://www.scotusblog.com/2012/06/in-the-end/
    He even claims to have no inside info!

  2. avatar Chris Reed says:

    Oh, come on, guys, you know the ACA was written to game the Congressional Budget Office by frontloading revenue and delaying cost. How can you gripe about anyone’s honesty while promoting the fiction that it saves money to add 16 million or 31 million people to the ranks of those getting subsidized health care? Sheesh.

  3. avatar chrisfinnie says:

    You’re right about the reaction to the Roberts decision. My Republican mother says he “betrayed” the country and is already planning what medical care she’ll need before 2014 when the whole law kicks in.

    This is because Faux Noise assures her that the death panels are already set up and will cut seniors off of Medicare. I didn’t bother to point out that Republican representative Paul Ryan is the one who proposes to do that, and Romney says he agrees with it. Because I’ve just found it a waste of time to argue with anybody who listens to Rush Limbaugh.

    By the way, did you know it’s Obama’s fault Colorado is on fire? Nothing to do with climate change. Rush says that doesn’t exist. Nothing to do with budget cuts for the Forest Service. Conveniently forgot that. Skip the fact that the funding cuts started in 2004 when a Republican was in office. It’s Obama’s fault! Faux Noise says so. And she wonders why I don’t call more often. Sigh!

  4. avatar pveesart says:

    Despite all the drama from Speaker Boehner and the Republicans, the
    “individual mandate” was the Republican response to “single payer” (AKA,”socialized medicine”) and it enjoyed wide support among Republicans until President Obama rolled over and made it the central feature of his healthcare reform. Then the Republicans quickly disowned it and have been trying to throw Obama under the bus ever since.

    Now that the Supreme Court has upheld the constitutionality of the individual mandate, I’ll have no choice but to pay my “taxes” to support the private insurance companies and for-profit health care industry (selfless servants of humanity that they are) instead of a government-run program. Hey! Weren’t my tax dollars just used to bail out a bunch of other corporations that were also fleecing the public? Good thing we didn’t end up with something evil like socialism.

    My Republican mother lives in Colorado Springs and she also just told me that the fires are Obama’s fault. I think there might be a story here…

  5. avatar GeoHagop says:

    Robert Reich also predicted Roberts’ vote.

  6. avatar cbarney says:

    “Of course it’s almost equally ironic to listen to Democrats now embrace and defend a Supreme Court they were prepared to attack, especially when Roberts’ rationale for upholding the constitutionality of the law was to declare it a “tax,” which Democrats had fervently argued it was not.”

    except that despite how the spinmeisters would shape it, the democratic solicitor general, donald verellio, had argued before the supreme court that while the mandate was constitutional under the commerce clause, it was also constitutional as a tax, and he thinks that that was what gave roberts a line to hang his decision on. see nytimes http://www.nytimes.com/2012/06/30/us/in-health-ruling-vindication-for-donald-verrilli.html?hpw.

    • avatar pjhackenflack says:

      Yes, the Solicitor General made the tax issue a secondary argument, but when they were seeking to pass it, Obama and the Democrats in Congress argued vociferously that this was NOT a tax. Now, er, whatever.

  7. avatar tegrat says:

    I, and any Democrat I know, will still gladly join my wingnut friends in impeaching Roberts and removing him from the court. Of course their tune will change come the next wingnut friendly decision he hands down.

  8. avatar tegrat says:

    As is usually the case, a closer look at the law is in order:

    Reform requires all employers with more than 50 employees to offer health benefits to every full-timer or to pay a penalty of $2,000 per worker (less the first 30). The benefits must provide a reasonable level of health coverage, and (except for grandfathered plans) employers will no longer be able to offer better benefits to their highly compensated executives than to their hourly employees. These requirements will increase medical costs for many companies. It’s important to note that the penalty for not offering coverage is set significantly below these costs.

    Bottom line, paying the penalty (or tax) for employers not covering their employees is a cheaper option.

  9. avatar pmcohen says:

    @Chris Reed – a comment on how our system actually (doesn’t) work is in order. Many of those 16 million or 31 million uninsured actually do get sick. When they do, they often end up in emergency rooms, the (by far) most expensive way to deliver treatment. Then, when they can’t pay their bills, the cost of the ‘uncompensated care’ is shifted to the rates paid by those of us who do have insurance. There is a reason every other industrialized nation in the world has figured out that it’s better to make sure everyone has health coverage.

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