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 of 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.
