President Obama and top Democrats have repeatedly exuded cautious confidence that the Supreme Court would uphold part or most of the Affordable Care Act. But beneath their strained optimism, the Obama administration almost certainly has known that politics, not law, will ram its way into the high court’s final decision.
There was never much doubt that the health care reform law would face rough sledding from the court’s four ultra conservatives. The tip-off came quickly. The four justices’ hard line challenge to the government’s position during oral arguments signaled that they leaned heavily toward scrapping the law.
The ostensible hook that the conservatives latched onto to assail the law was that the individual mandate is an unlawful infringement on individual liberty. It allegedly forces Americans to buy insurance. Nowhere does the U.S. Constitution confer that power on Congress or the executive branch.
That’s just the start. Polls show that a slender majority of Americans want to dump all or parts of the law. This includes some Democrats.
Despite loud protests that they are not swayed by public opinion or ideological beliefs, the court’s conservatives have shown they are as much “judicial activists” for their political views as they accuse liberal jurists of being. And the polls give even more ammunition to them.
But even without the polls, the GOP and ultra conservatives waged their own very public and relentless war on health care reform from the moment Obama proposed it—even though the White House structured the legislation along line Republicans had advocated for years.
The GOP claim it would be too costly, overburden business, would be unpopular with a majority of Americans, and would be an unwarranted infringement on the power of states to regulate health care. They also argued it would be too difficult for private insurers and health providers to offer it, price it and administer it.
A decision to scrap the health care law—at least its key provisions–would be the political icing on the cake for a court that has done everything it could to tip the political scales back toward the GOP.
The first nudge by the court under Chief Justice John Roberts was the Citizens United ruling. It virtually gives corporations and the super rich unrestricted license to pour any amount of money they see fit into political campaigns—and to do so anonymously.
The conservatives made a preposterous twist of the 14th Amendment to confer individual rights and freedoms on business entities to justify the decision.
The ruling was a clear reaction to the shock of the 2008 presidential campaign. The shock was that Obama and the Democrats, in a rare political victory, beat the GOP at its own fundraising game. It raised tens of millions, with a good chunk of that coming from Wall Street and wealthy donors.
These are the donors who traditionally give lopsided amounts of money to Republican presidential candidate’s coffers—always, of course, hedging their bets with some contributions to Democrats.
The Citizens United ruling was aimed at demolishing the campaign-fundraising field and insuring political campaigns in 2012 and the future would enable the GOP to reassert its financial supremacy.
In the era when money not just dominates, but often buys elections, the side maintaining a top-heavy edge in funding will win elections outright or, at the very least, ensure its side will remain competitive.
The Supreme Court conservatives continued their blatant political assault with last week’s ruling inKnox v. SEIU case. Even though two of the court’s liberal justices joined the conservatives in siding with Dianne Knox and other California workers who sued the Service Employees International Union, the more progressive justices said the rightist majority had gone too far.
Like many workers, Knox and her co-plaintiffs were not members of the union, but were represented by SEIU because they benefit under union-negotiated contracts, such as by receiving better wages and benefits. Such workers don’t have to join, but are assessed dues, except in so-called right-to-work states, because they benefit from the union’s negotiations.
The 7-2 court majority in Knox found that SEIU had failed its legal obligation to inform California state employees it would charge them a special assessment to raise money for the union’s political fund and enable them to opt-out. But the conservative majority opinion went beyond the legality of the assessment saying for the first time that unions must allow nonmembers to “opt-in.”
A New York Times editorial Saturday stated that “the conservative majority strode into the center of the bitter debate about right-to-work laws” and issue of collective bargaining that have been so contentious in Wisconsin and other states.
The decision virtually mandates that unions can’t collect dues from nonunion members even when the unions are fighting for wage and job-protection rights that affect those not in the unions.
The ruling ostensibly upholds individual liberty. But the result is that it will severely cripple public employee union’s ability to raise monies necessary to vigorously fight for labor protections. The decision gives a legal cover to GOP governors to further sledgehammer public employee unions in their states.
Next up is affirmative action. Expect the court to use the suit by a former Texas white student against the University of Texas’s modest affirmative-action program to once and for all dump affirmative action out of education. This will have a ripple effect throughout all government and even corporate affirmative action programs.
The court’s sharp upturn in the sheer number of conservative decisions tells the real story of the majority’s naked political activism.
In the first five years under the watch of Chief Justice Roberts, the court issued conservative decisions in nearly 60 percent of the cases, an unusually large number of them by a 5-4 split.
And in the term that ended the year after Obama took office in 2009, the percentage of conservative decisions shot up to 65 percent. This is the largest number of overtly conservative political decisions in over a half-century. There’s no sign that that the court’s conservative rampage will change.
The health care reform law, if it is overturned, would be the court conservative’s political coup de grace. It would come in the heat of what will be an intensely close White House race and will earmark yet another big political gift to the GOP. With that and its other decisions, it has done everything it could to bend the law for its blatant political ends.
Earl Ofari Hutchinson is a frequent political commentator on MSNBC and author of How Obama Governed: The Year of Crisis and Challenge. He is an associate editor of New America Media and host of the weekly Hutchinson Report on KPFK-Radio and the Pacifica Network. Follow Earl Ofari Hutchinson on Twitter: http://twitter.com/earlhutchinson