Exclusive: Comments on the U.S. Supreme Court’s three-day debate over the Affordable Care Act have focused on the damage the five Republican justices are expected to do to President Obama by striking down his prized new law. But the bigger story may be their judicial war on democracy, says Robert Parry.
By Robert Parry
James Madison and other Framers of the Constitution had their concerns about the potential excesses of democracy – thus explaining the six-year Senate terms and the intricate system of checks and balances – but they also trusted in democracy and the ability of the people’s government to fashion national solutions to serious problems.
That was one of the reasons Madison and the Framers granted Congress an unlimited power to regulate interstate commerce, trusting that political leaders operating within the democratic process would recognize the needs of their time and apply this broad authority as necessary “to promote the general Welfare” of the American people.
But the spectacle that has unfolded over the past three days before the U.S. Supreme Court marks an historic reversal of this longstanding trust in democracy, as the Court’s narrow right-wing majority prepares to eviscerate the Commerce Clause as part of a broader assault on the principles of representative democracy – and on the Framers’ philosophical belief in the value of government itself.
These five Republican justices – John Roberts, Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito – appear poised to effectively rewrite the Constitution’s Commerce Clause in order to justify thwarting the judgment of elected officials who enacted the Affordable Care Act in 2010.
If the GOP Five continue on this presumed course toward striking down “Obamacare,” it also would become the latest front in what looks to be a right-wing judicial war on democracy – with the Supreme Court’s Republicans serving not as fair-minded arbiters of the Constitution but as a black-robed rear-guard of an ideological army.
Bush v. Gore
The first major battle of this judicial war on democracy was the Bush v. Gore decision in December 2000, overturning the will of the American electorate, which favored Al Gore both nationally and apparently in the key state of Florida.
The Court’s Republican partisans first enjoined the state of Florida from continuing a recount so the result would not undermine George W. Bush’s “legitimacy” – once the Court could figure out a rationale for handing him the Presidency. Then, they got to work coming up with some ”constitutional” excuse.
The President’s power to appoint federal judges was of particular importance to Justice Sandra Day O’Connor, who was eager to retire so she could tend to her ailing husband. As reporter Mollie Dickenson learned in the days after the November 2000 election, O’Connor had been distraught on Election Night to hear the TV networks initially declare Gore the winner in Florida.
Dickenson reported that O’Connor, at an Election Night party, was “visibly upset – indeed furious – when the networks called Florida for Vice President Al Gore.” The justice declared that “this is terrible” and gave others attending the party “the impression that she desperately wanted Bush to win,” Dickenson wrote.
In that same article, dated Dec. 11, 2000, the day before the Supreme Court ruled on Bush v. Gore, Dickenson quoted a former high-ranking Justice Department official in the Clinton administration as grasping the Court’s conflict of interest over the President’s appointment power.
“The Supreme Court’s vote is a totally self-interested vote,” the former official said. “They are ensuring that they will remain in the majority, even increase their majority.”
Still, Gore remained confident that the Supreme Court – and especially O’Connor – would uphold the “rule of law” and allow the legally mandated Florida recount to proceed. Gore apparently couldn’t get his brain around the emerging reality of a judicial process thoroughly infected by partisanship and ideology.
Behind the scenes, O’Connor was collaborating with Justice Anthony Kennedy in cobbling together a ruling that relied on a tortured interpretation of the 14th Amendment to justify awarding the White House – and the power to appoint federal judges – to the popular-vote loser, George W. Bush.
The key part of the ruling – approved on a 5-4 vote – cited the Amendment’s “equal protection of the law” principle to throw out the recount because of Florida’s variant voting standards across the state. The Court then gave the state a laughable two hours to fix the problem and complete a new recount.
The ruling, with Kennedy as the principal author, had turned the 14th Amendment on its head because the recount was an attempt to reduce the discrepancies in Florida’s voting processes, which included antiquated equipment that undercounted votes in poor and minority precincts while state-of-the-art equipment in richer and whiter precincts had far fewer lost votes.
By blocking the recount, the Court, in effect, ensured that the votes of wealthy whites had more “equal protection” than those of low-income retirees, blacks and Hispanics. In other words, the five Republican justices used the 14th Amendment to guarantee greater racial and social-class discrimination in the Florida vote count, not less.
Also, by allowing only two hours to fix the problem and conduct the recount, the GOP justices ensured that the state’s Republican officials – working under the gaze of Gov. Jeb Bush – could declare his brother, George W. Bush, the winner of Florida’s electoral votes and thus the Presidency of the United States. [For details, see Neck Deep.]
After Bush took office, things did look up for the Judiciary’s right-wing faction, which benefited from a steady stream of reinforcements, new conservative judges who strengthened the Right’s ideological battle lines in the federal courts.
Also, when right-wing Chief Justice William Rehnquist died on Sept. 3, 2005, Bush replaced him with right-wing Chief Justice John Roberts. When Justice O’Connor finally stepped down on Jan. 31, 2006, Bush filled her seat with an even more conservative justice, Samuel Alito.
Still, there was that pesky thing called democracy that couldn’t always be thwarted, especially if the victory margins were too big. So, after President Barack Obama won Election 2008 and brought in a Democratic Congress, the Republican majority on the Supreme Court had to swing into action with a powerful counter-attack to protect the GOP’s crucial financial supply lines.
On Jan. 21, 2010, the five justices — Kennedy, Roberts, Scalia, Thomas and Alito — pushed through the Citizens United decision, clearing the way for the ultra-rich to effectively buy elections through unlimited spending on attack ads against disfavored candidates. Again, Justice Kennedy was the author.
Though right-wing billionaires had already created powerful artillery batteries in the form of a massive media infrastructure and influential think tanks, they now could pour millions and millions more dollars directly into campaigns through SuperPACs.
This combination of saturation propaganda from the Right’s media, think tanks and SuperPACs guarantees that many Americans will rally to the Right’s banner even when that means lining up against their own interests – and on the side of powerful corporations and the wealthy.
It also appears that even on those rare occasions when the Democrats can muster the votes in the House and a super-majority in the Senate to send an important bill to the desk of a Democratic President, the Republicans on the Supreme Court will fulfill their role as a reserve army in black robes, a last line of defense waiting to do whatever is necessary to win the day even if the Constitution becomes collateral damage.
That is the significance of what has played out over the past three days. Based on the tone and tenor of the questions, it seems the five Republican partisans are engaged in another flanking maneuver against democracy, to wipe out a duly enacted law.
Though the Constitution sets no limits on the power of Congress to regulate interstate commerce – since the Founders trusted in the future judgment of elected officials to make reasonable decisions for the good of the country – the GOP Five apparently intend to fix this oversight by the Framers.
The GOP Five apparently will amend the Constitution by fiat, inserting new restrictions in the Commerce Clause and then judging that the health-care law is outside those limits. [See Consortiumnews.com's "GOP Justices Ignore the Founders."]
Underscoring this intent, the Republican justices spent their third day of oral arguments musing about what to do with the remainder of the Affordable Care Act once they strike down its central feature, the individual mandate to buy insurance, as a violation of their newly invented constitutional limitation on the Commerce Clause.
This need for the GOP Five to rewrite the Commerce Clause was driven home by a straightforward U.S. Appeals Court ruling by a conservative senior judge, Laurence Silberman, who bluntly endorsed the constitutionality of the Affordable Care Act by noting the absence of any limitation on congressional regulation of national commerce.
In a Nov. 8, 2011, ruling, Silberman, an appointee of Ronald Reagan, wrote: “We look first to the text of the Constitution. Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’” [Emphasis added by Silberman]
Silberman continued: “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’
“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.
Silberman’s accurate – and indeed obvious – statement that there is “no textual support” in the Constitution for challenging the individual mandate as unconstitutional should be especially striking to “strict constuctionists,” as all the GOP Five claim to be. “Strict construction” means to follow the words of the Constitution precisely.
For decades, this principle of “strict construction” has been a central talking point for the Right, which has accused “activist judges” of divining new constitutional “rights” which are not explicitly stated.
Some of those right-wing complaints are baseless since the Courts – in, say, striking down racial segregation in the South – have simply followed the clear language embedded in constitutional provisions such as the 14th Amendment and, significantly, the Commerce Clause.
In such cases, the Right also has argued that these issues should be left up to the elected branches of government and it is not up to the Supreme Court to intuit new “rights” in the Constitution. Except it appears when the process goes against the Right. Then, it’s up to the Court to invent new “rights” and declare duly enacted legislation to be in violation of those “rights.”
That is precisely what the GOP Five were signaling in their three days of acting more like a pundit panel on Fox News than as jurists entrusted with the profound responsibility to act as a fair arbiter of the law.
On the second day of oral arguments, with their goofy what-if questions about Congress forcing Americans to buy broccoli, gym memberships, cell phones and other silly items, the Republican partisans were signaling that they were not only going to second-guess Congress and the President but the Framers as well.
Though Madison and the other Framers had left the power to regulate interstate commerce open-ended – understanding that the nation might face challenges unforeseen in the late 18th Century – Kennedy and other GOP justices demanded that the Obama administration present some limitations to the Commerce Clause.
When U.S. Solicitor General Donald B. Verrilli Jr. wouldn’t play their what-if game, Kennedy and the others indicated that they would take it upon themselves to invent those limits, presumably to insure that no future Congress can require Americans to buy broccoli, gym memberships, cell phones – or health insurance.
The Republican justices then got down into the reeds of legislative minutiae discussing what other parts of the law should be dumped and what scraps might be kept. Sometimes, the Court’s debate sounded like a college bull session as some know-it-alls declare how they would solve some nettlesome problem if they were king.
As Washington Post columnist E.J. Dionne Jr. noted they acted like “they were members of the Senate Health, Education, Labor and Pensions Committee. Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young.
“On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress ‘wouldn’t have been able to put together, cobble together, the votes to get it through.’ Tell me again, was this a courtroom or a lobbyist’s office. …
“One of the most astonishing arguments came from Roberts who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited ‘pediatric services’ and ‘maternity services.’”
Justice Antonin Scalia also let his right-wing ideological uniform peak out from under his black robes when he dressed down Verrilli for noting that the United States has accepted the principle of providing medical treatment for a person who is injured or stricken with a sudden illness.
“We’ve obligated ourselves so that people get health care,” Verrilli said, drawing a riposte from Scalia: “Well, don’t obligate yourself to that.”
In other words, what the world saw over those three days was the intrusion of five right-wing justices into the democratic process on behalf of an Ayn Rand-style “free-market” capitalism which says that lesser people – or at least those with lesser money – should be allowed to die untreated and that the people through their representatives in Congress shouldn’t be allowed to do anything about it.
It might be noted here that when “free-market” champion Ayn Rand contracted lung cancer, she snuck into the Medicare system, using a revised spelling of her first name and her husband’s last name, to get government-paid-for medical care.
It also might be noted that the individual mandate was a conservative idea devised by the right-wing Heritage Foundation and embraced by Republicans, such as former House Speaker Newt Gingrich and former Massachusetts Gov. Mitt Romney.
Embraced that is until President Obama tried to demonstrate bipartisanship by reversing his earlier resistance to the idea and adopting the individual mandate as a way to expand health coverage and contain rising costs within a system of private health insurance companies.
Then, the individual mandate suddenly became an “unconstitutional” affront to American “liberty,” even though conservative jurists like Silberman could find nothing in the Constitution or in court precedents to make it so.
Before the Supreme Court’s ruling comes down in June, it is possible that Kennedy or another member of the GOP Five might have some second thoughts about the course they’re on – possibly after a shame-inducing flashback of their lofty pronouncements about “judicial restraint” and their beloved “strict construction” of the Constitution.
But the writing seems to be on the wall that the five Republicans on the Supreme Court will take out the Affordable Care Act as part of their larger judicial war on democracy.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.