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Why did the Supreme Court Deliver President Obama an Unexpected Favour?

July 6, 2012

It is a little over a week since the US Supreme Court delivered its landmark judgment on President Obama’s signature policy achievement in office so far, the Affordable Care Act, which extends medical insurance coverage to additional tens of millions of Americans as well as covering those with pre-existing conditions. It was an achievement made in the face of almost universal Republican opposition, and which at the time of its implementation was believed by almost every respected constitutional lawyer to be fireproof in terms of the law and the constitution. In modern America, however, what the courts, and in particular the Supreme Court, decide is lawful or constitutional has become increasingly unrelated to what mainstream legal and constitutional scholars would consider to be the case, and increasingly closely related to the political and partisan prejudices of those serving on the bench. To this extent, it is as if the modern US Supreme Court is made up of politicians dressed in legal robes. It is the reason that so many decisions which divide Democrats and Republicans in the Congress and the country so often end up split 5-4, between the five conservative justices and the four more liberal justices. Law decided on party lines! It was never made so obvious as when the Supreme Court in 2000 voted 5-4 to halt the recount in Florida and award the election to George W. Bush over Vice-President Gore. In that case, one of the justices, Antonin Scalia, had to perform the equivalent of legal gymnastics to explain why he was overturning the right of Florida’s Supreme Court to continue with the count while championing state rights to decide such things in every earlier case. When queried, he told dissenters to “get over it!” More recently the Court voted 5-4, in the Citizens United case, to allow corporations and other vested interests to spend as much as they liked to promote and attack the causes of particular candidates, a decision hugely beneficial to the Republican Party. As expected, the vote went 5-4 along usual party lines. So it was taken in many quarters as a given that the Supreme Court would go the usual 5-4 route to overturn the will of the President of the United States, the Senate and the US House of Representatives and vote to rule the whole of the health care reforms as unconstitutional. On Intrade, the betting market, the likelihood was trading at around 80% the day before the decision came down. In the event, the decision was 5-4, but to the anger and shock of a Republican Party accustomed to having the referee on their team, it went the other way. Chief Justice Roberts, an arch-conservative appointee of George W. Bush, voted to uphold the Affordable Care Act as constitutional, siding with the more liberal members of the court, albeit determining it legal only on the basis of the principles of the Government’s right to taxation, an apparent sop to the campaigning arm of the Republican Party. So why did he do it? Was it a decision based on a great respect for doing the right thing in terms of the law and the constitution? On past evidence, unlikely. Was it a growing concern that the Court was on the verge of at last being rumbled by the general public as the judicial arm of the Republican Party, in the same way that Fox News was a while ago rumbled as the party’s broadcasting arm. Perhaps. Was it because he thought it would energize the Republican base to come out in force to overturn the Act by ousting the President and his Democratic allies in Congress. More likely. Or was it because he feared the revenge of a re-elected Democratic President and Senate when the time should come to replace a number of the ageing justices on the court, maybe as many as three in the next four years. Most likely! In fact, the decision has so far served to boost the President in the post-judgment polling and betting. We now look forward to seeing how this plays out! It will be interesting.

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