A Bigger Victory Than We Knew

Brooks Kraft/Corbis
President Obama with Supreme Court Justices Anthony Kennedy, Samuel Alito, and John Roberts before addressing a joint session of Congress, Washington, D.C., February 2009


Above all, we should celebrate. The Supreme Court, by a 5–4 vote, has left President Obama’s Affordable Care Act almost entirely intact. So the United States has finally satisfied a fundamental requirement of political decency that every other mature democracy has met long ago, and that a string of Democratic presidents, from FDR to Bill Clinton, tried and failed to secure for us. We finally have a scheme of national health care provision designed to protect every citizen who wants to be protected.

The Affordable Care Act does not change America’s tradition of using private health insurance as the basic vehicle for financing medical care. The scheme it creates is less efficient and rational than a single-payer system like Great Britain’s in which the national government employs doctors and hospitals and makes them available to everyone. But a single-payer scheme is politically impossible now, and the act erases the major injustices that disgraced American medicine in the past. Private insurers are now regulated so that, for example, they cannot deny insurance or charge higher premiums for people already sick. The act subsidizes private insurance for those too poor to afford it, and extends the national Medicaid program that has provided care for some of the very poor to cover all of them.

But it is nevertheless depressing that the Court’s decision to uphold the act was actually a great surprise. Just before the decision was announced, the betting public believed, by more than three to one, that the Court would declare the act unconstitutional.1 They could not have formed that expectation by reflecting on constitutional law; almost all academic constitutional lawyers were agreed that the act is plainly constitutional. The public was expecting the act’s defeat largely because it had grown used to the five conservative justices ignoring argument and overruling precedent to remake the Constitution to fit their far-right template.

The surprise lay not just in the fact that one of the conservatives voted for the legally correct result, but which of them did that. Everyone assumed that if, unexpectedly, the Court sustained the act it would be because Justice Anthony Kennedy, the least doctrinaire of the conservative justices, had decided to vote with the four more liberal justices, Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. After all, since 2005, Kennedy had joined the liberals in twenty-five cases to create 5–4 decisions they favored, rather than joining his fellow conservatives to provide five votes for their side. Two of the other conservative justices—Justices Antonin Scalia and Clarence Thomas—had done that only twice, and the two others—Chief Justice John Roberts and Justice Samuel Alito—had never done so. So most commentators thought, from the moment the Court agreed to rule…

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