Tuesday, April 26, 2011

On Justice Kennedy and "Fast Track" Obamacare Review

 The Supreme Court yesterday declined a request from Virginia Attorney General Ken Cuccinelli to expedite review of the Obama Administration's sprawling and controversial "Patient Protection and Affordable Care Act" which mandates purchase of health insurance by every citizen on penalty of law (also known as "Obamacare").  

 The decision, which just as easily could have went the other way, says nothing about the merits of the law or its constitutionality-- on which almost all acknowledge the High Court will eventually have to rule on, see here-- but has raised lots of speculation on how the Supreme Court will eventually come down on the controversial law pushed through on an almost straight party line vote in the U.S. Congress, (e.g., in the Senate on a 60-39 vote Christmas Eve 2009-- Merry Christmas America!-- and in the U.S. House March 21, 2010 by a vote of 219-212 with only 34 Democrats breaking ranks and opposing the bill along with 178 of their Republican colleagues.  Of course, politically speaking, and mirroring the deep ambivalence towards this legislation of the American electorate-- who promptly expressed their disapproval in the 2010 Mid-term elections-- this contrasts starkly to the much stronger bi-partisan support of other prior momentous legislation in American political history, e.g., the Civil Rights Acts of the 1960's which had broad bi-partisan support, or Social Security in the 1930's under President Roosevelt's "New Deal").

 This interim decision of the highest court in the nation's judicial system, while seen as unwise by some, was seen as a victory for the Obama Administration, who had urged the high court not to expedite review of Obamacare, see here.  And while it is impossible to know for sure the reasons for the Supreme Court's unwillingness to bypass the usual course of cases like this through the Federal Courts of Appeal, it may signal a stronger present hand by the conservative's on the issue as well as more pragmatic liberals who would like to buy more time-- and hopefully better reasons-- with which to persuade Justice Kennedy over to their position before the whole court must officially render a decision on the law.  (Make no mistake, although the Supreme Court was envisioned by the Founders as beyond the "political" forces which blow regularly through Congress, in modern times it has become, unfortunately, more and more "politicized" and accordingly is not immune to the vagaries and influence of interest groups and public opinion alike). 

  Of course, the usual and "accepted" answer to the high court's decline to immediately review such a case is that, by waiting until the various Courts of Appeal have made their decision in the challenges to the law now winding their way through the Federal judiciary, (particularly in the Fourth, Eleventh, and Ninth circuits), the Supreme Court will then have the benefit of the "diversity" in opinion that will no doubt be expressed in the various decisions in the appellate courts-- and the varying legal justifications therefore-- that ostensibly could give them a better understanding of the issues and the pros and cons of ruling in either direction.  We however dismiss with the naive notion that other courts can "school" the U.S. Supreme court in its own precedents, or that the High Court will allow them to do so; rather we think it likely the Supreme Court will come to their own independent determination rather than merely parrot the rulings of the Court's of Appeal, (as it did in the only other case decided of such high caliber in recent memory, Bush v. Gore).  

  Most importantly however, at least from the ostensible perspective of the Obama Administration, the denial by the Supreme Court of so called 'Rule 11' direct review-- taken from the Supreme Court Rule which authorizes it in cases of extraordinary import to the nation-- the decline of jurisdiction to review the Patient Protection and Affordable Health Care Act now buys critical time in which a possible illness or retirement of any of the more conservative justices on the court might allow for their replacement by President Obama prior to the high court's hearing the case and result in a guarantee of the law being upheld.  The contrary outcome, a ruling by the High Court striking down the law right before the 2012 elections, would be the Obama Administration's nightmare.

  Although there is considerable difference of opinion on the constitutionality of the law-- particularly between the Obama Administration and the majority of states which have sued to block its enforcement-- the unanimous decision of all legal scholars and court watchers this author is aware of is that the case will inevitably come down to a 4-4 decision with the tie-breaking vote most likely coming from Reagan-appointee and regular swing vote Justice Anthony Kennedy, see here (assuming Chief Justice Roberts' votes with the "conservative" block and Justice Scalia returns to his anti-expansive-Commerce-Clause roots, see here).  This also assumes the failure of liberal Obama appointee and Supreme Court Ass. Justice Elena Kagan to recuse herself due to her likely legal advice to Obama as then-solicitor General of the United States, see here.

 But Kennedy's vote is by no means assured to either side, often voting with the left bloc of the Court on issues of morality or in cases involving what he sees as invasion by governments into areas of "personal liberty" (or what has been somewhat vaguely referred to as "autonomy" issues).  

  Accordingly, in recent years-- and lacking a substantive basis for many such issues in American jurisprudence-- he has shown a propensity to cite foreign law in authoring United States Supreme Court decisions in such areas, (see here).  Such rulings have included the decision striking down state laws against sodomy in Lawrence vs. Texas because in his view they "demean" homosexuals, (a social issue he has veered remarkably leftward on since his confirmation hearings in the Senate), and Romer vs. Evans, another decision of the Supreme Court authored by Kennedy that struck down "Amendment Two," a state of Colorado Constitutional provision approved by 53% of that state's voters which barred special "protections" from being given to homosexuals at the local level.  

  Justice Kennedy has also shown his at-times-left-leaning-tendencies in criminal law by authoring Roper vs. Simmons, the Supreme Court decision which struck down the ability of states to execute minors for First Degree Murder, (another case in which he referred to the law of foreign jurisdictions to justify the ruling, see here).

  Kennedy has also authored a less known high court decision striking down application of the death penalty against a man who so brutally raped his 8 year old stepdaughter that he "tore the victim's perineum from her vaginal opening [ ] to her anal opening....[and] tore her vagina on the interior such that it separated partially from her cervix and allowed her rectum to protrude into her vagina" and required extensive, emergency surgery to save her life, (see Kennedy vs. Louisiana).  

  In commerce case decisions, the sort that will be directly at issue in any appeal of Obamacare before the Supreme Court, Justice Kennedy's record is more mixed, but generally leans towards the Conservative bloc of the Court, a matter we will look at in more detail in Part Two of this discussion.

 Needless to say however, in our estimation-- and all things considered-- we give the Supreme Court's chances at striking down Obamacare at no better than 4 in 10 when it does come before the High Court.

 For the ACLP and those like us who oppose this unprecedented expansion of Federal power over all our lives with all that it entails to medical "autonomy" and our economy, see So what's really the problem with Obamacare? post on this blog, that means we may have to look to the "political" branches for repeal of Obamacare in the post-2012 period.

 Of course, that's all the more reason to get involved in the political process and exercise our rights as citizens to insure Obama's defeat and election of a pro-repeal Senate.  jp            

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