Now that the dust is settling around the Supreme Court's decision upholding national health care, it's possible that the justices saved themselves as well as the Affordable Care Act. Before the decision was rendered, the court's standing with the public had reached a low point. But more importantly, there is the lingering toxicity of the Bush v. Gore decision, which for millions of people represents five conservative judges stealing a presidential election, just as the Citizens United ruling seems like a ham-fisted way to deliver billions of dollars of super-PAC money to right-wing causes.
The health care decision brought the conservative wing of the court back from the edge. It seemed that Chief Justice Roberts in particular had risen to the bench in sheep's clothing. In his confirmation hearings he was all affable mildness and repeated his allegiance to the principle of showing respect for past precedents. Roberts then went on to install not just the most highly politicized Supreme Court since the Roosevelt era but one that overturned more lower court rulings, along with past Supreme Court rulings, than any other in history. The constant right-wing complaint that liberal judges legislate from the bench was a stalking horse so that the Roberts court could hand down rulings that consistently favor the police over the rights of defendants, corporations over individuals, and reactionaries over progressives. The appearance of a fixed and stubborn agenda was becoming stronger with every session.
The health care ruling indicated that Roberts may not have been entirely fooling Congress and the public in his confirmation testimony. The dissent in the case, which included swing voter Justice Kennedy, would have been outrageous if it had carried the day. The dissenters totally denied Congress's right to pass national health, using arguments about the commerce clause of the Constitution that were blatantly a paper mask for their personal political views. They simply wanted to say no to health care reform, the way that in Roosevelt's time some hidebound conservative justices wanted to say no to the New Deal and before that no to civil rights.
In particular, one argument delivered by Kennedy is ominous. He and the other dissenters held that the federal government cannot impose its will on private conduct and states' rights. This is strict constructionism carried to frightening, if not crazy, lengths, because it upholds private conduct that would deny rights to minorities and women -- isn't racial prejudice and gender bias private conduct? It would allow Southern states to turn their backs on lynching -- isn't that a state's right? The Civil War was fought to prove that the federal government is obliged to overrule prejudice, just as the Progressive era proved that corporations cannot willy-nilly abuse workers. The fact that the right wing wants to overturn history is unconscionable. This is part of a bigger agenda by the three ultra-conservative justices, to dismantle any interpretation of the Constitution post-1791, when the Bill of Rights was added to the original document.
Their legal reasoning is a sham, as any informed citizen can easily discover without being a lawyer or Constitutional expert. Why should the Bill of Rights, which made additions to the Constitution (i.e., progressive improvements) be holy writ while later social reforms are considered unconstitutional? Why should the Roberts court permit itself to throw out precedent while claiming that their predecessors were wrong to do the same? Ultimately, every society has a right to change. It is self-contradictory to deny us this right when America was founded upon the desire of the founding fathers to bring about a revolutionary change in the first place -- what else is the Declaration of Independence?
To a citizen observing the twisted logic of the right-wing justices and their obvious social agenda, it is baffling that educated minds like Roberts and Alito could align themselves with cranks like Scalia and Thomas, who have no legal distinction and were chosen strictly to adhere to an ideology. The right likes to rebuff progressivism by calling it, too, an ideology. It isn't. To fight for individual rights, free speech, social equality, the protection of minorities, fair taxation and the equitable distribution of income, etc. is a major historical force, now over two hundred years old, upon which all advanced democracies are based. Opposing this trend is reactionary. That held true when the right tried to kill Social Security in the thirties and Medicare in the sixties. It is just as true today when they try to kill national health care. Every other advanced country in the world offers affordable medical care to all its citizens. The fact that the right wing opposes such reforms in America is nothing to boast about or mount a crusade over -- it's a moral shame.
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