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Timothy Stoltzfus Jost Headshot

Siding With the 1%?

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Many progressives are asking, "Where is the change we voted for? Is the Obama administration any different than the Bush administration that preceded it?" And some progressives I have talked to may just sit this election out.

If this is what you are thinking, consider the most important reason to vote for President Obama: The Supreme Court.

If you want to see what the country could look like if Mitt Romney is elected, simply read the dissent in the Supreme Court's Affordable Care Act case, written by four Republican appointees. We came within one vote of losing all of health care reform -- not just the individual mandate but every last provision of the ACA, right down to already-existing coverage for 3.1 million young adults and protection for the widows of miners who had black-lung disease. The ACA is not the health reform bill many of us would have written. It is, however, the only vehicle we are likely to have in a generation to expand access to basic health care for millions of Americans.

The radical assumptions underlying the Republican-appointed justices' agenda for our country is made plain in the first sentence of their dissent: "Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it." The "best" health care? How about any health care? The dissent's very phrasing shows that its authors think of health care as a luxury -- not a necessity. One would think the Republican appointees were writing about country club memberships.

But the fundamental changes these justices would make in our nation's social fabric go far beyond health care. The dissent is a 65-page sustained attack on the ability of the federal government to do anything about society's problems. The dissenters characterize Congress in its attempt to address market failures in health care as a "hideous monster whose devouring jaws... spare neither sex nor age, nor high nor low, nor sacred nor profane," quoting Alexander Hamilton. (They don't mention that Hamilton was actually ridiculing people like them who fear a national government strong enough to address national issues.) The Republican appointees construed the Constitution's Spending Clause to eliminate the ACA's attempt to extend Medicaid to 17 million poor Americans, calling into question the federal government's ability to enlist the support of states in addressing national problems. Their interpretation of the Constitution could limit the power of Congress to address many subjects other than health care -- including civil rights and environmental issues.

Even Chief Justice Roberts would limit the Constitution's Commerce and Necessary and Proper Clauses. He also held, for the first time, that federal grants given on the condition of state compliance with conditions decided by Congress could unconstitutionally coerce the states. Roberts sided with the Democratic appointees who made up the majority in order to maintain the court's image of non-partisanship, but he made his ideological preferences perfectly clear.

When Roberts sides with his Republican-appointed allies, the Supreme Court empowers the wealthiest 1% and undermines progressive causes and institutions. Corporations are now flooding our elections with money thanks to the Court's Citizens United decision, corrupting our democratic process. In one recent case, the Court went out of its way to impose new burdens on public employee unions, reaching beyond the questions the parties had asked it to decide. In another, Justice Scalia attacked Obama's recent moratorium on deporting undocumented students, even though the issue was not before the court and had not been addressed by any of the parties.

Four years ago, the hard work of progressives handed Barack Obama a decisive electoral victory. Appalled by eight lost years during which the rich had gotten richer and the poor poorer, while America lost ground by almost every measure, progressives worked the phones, knocked on doors, and gave generously to bring about change they could believe in.

Many have become disillusioned with the Obama presidency. But after recent Supreme Court rulings, the difference between Democratic and Republican appointees has never been so clear. The next president will almost certainly appoint another justice to the Court, possibly more than one. Will that justice side with the 1% or with the rest of us? It is up to you to decide.

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