As the nation focuses on Supreme Court oral arguments on the health care law, the politics of the ruling defy standard assumptions. On the one hand, the most pro-business Court in modern history will decide the case. It has handed huge victories to corporate interests by striking down campaign finance laws, eliminating class action damages in employment discrimination cases, and by issuing several rulings that limit access to the courts. This track record would appear to make the Court’s striking down the health care law a no-brainer. But I see the Court upholding the law for two reasons. First, the health and pharmaceutical industries prefer Obamacare to the status quo, and to potentially more sweeping reforms like single-payer which would emerge if the health care law at issue is struck down. Second, and most importantly, a ruling upholding Obamacare gives the Court even more freedom to pursue its right-wing agenda on other issues.
Although it would require Cirque de Soleil-level legal gymnastics for the Supreme Court to reject the nation’s new health care law, many fear that a Court that has routinely twisted, invented, or ignored longstanding case precedents will do the same in the instant case. And this is certainly possible.
But Chief Justice Roberts has a much broader agenda than voiding a moderate health care law that avoids single-payer and even a public option. Roberts seeks to rollback virtually every prior Supreme Court ruling that his conservative allies oppose, and affirming the health care law gives him the political space to accomplish this.
The Political Context
The last time that the entire nation was focused on a Supreme Court ruling was Bush v. Gore
in 2000. In that case, the Republican judges had a powerful ideological need to hand Bush the election, public anger notwithstanding.
Since that time, even the most destructive Roberts court ruling – which most believe was Citizens United
– came as a surprise to most Americans. Few anticipated that the Court would go far beyond the case before it to throw out campaign finance laws long upheld by its predecessors, and the political background of these laws was little known to the general public.
The Roberts court felt free to destroy already inadequate campaign finance restrictions because there was not a powerful public groundswell surrounding the Citizens United case. The same is true for its ruling in the Wal-Mart class action, and in the dozens of other decisions whose negative impacts were primarily if not exclusively understood by attorneys.
But the health care law is different. It has been the most partisan issue of Obama’s presidency, and Republicans plan to make it a central issue in the upcoming presidential race.
Striking down Obamacare would brand the Roberts Supreme Court as the Republican Court, tarnishing all of its future decisions. And unlike Bush v. Gore, which by installing a Republican President paved the way for Roberts and Alito’s appointments, invalidating the health care law is not absolutely essential to the Court’s conservative agenda.
Impact on Future Cases
Despite its consistent pro-corporate record, a ruling affirming health care reform will lead the traditional media to rebrand the Court as “above politics.” As mistaken as this conclusion is, it gives the media a chance to promote its favorite theme, which is that “the system” works.
Story after story will detail how Chief Judge Roberts refused to bow to Republican demands and instead followed the law. He and Alito are the true Republican political operatives on the bench, and both will see their reputations grow by affirming health care reform.
The downside of this rebranded “objective” court is that it facilitates a new series of reactionary decisions.
Chief among them will be the abolition of affirmative action
in public universities and possibly for all public entities. While few believe that Trayjon Martin would have been shot if he were white, at least five Supreme Court justices will not hesitate to rule that racism is dead and affirmative action based on racial preferences must also die.
In addition, federal courts have been cracking down on EPA regulations to protect the environment. Expect the Supreme Court to soon take a case that allows them to sharply limit environmental regulations opposed by corporate interests.
And those new campaign finance laws being contemplated in the wake of Citizens United? The Supreme Court will take those down as well.
So in order for the Roberts court to continue its assault on progressive laws and case precedents, it must uphold Obamacare. I expect a 7-2 vote, with all but Scalia and Thomas affirming the law.
Randy Shaw is author of The Activist’s Handbook and Beyond the Fields: Cesar Chavez, the UFW and the Struggle for Justice in the 21st Century.