The (Genuinely) Supreme Court

Whatever one thinks of universal health care and the Supreme Court’s decision to uphold it, I think it’s important to note something extremely important that happened yesterday.

Namely, the Supreme Court acted supremely.

Wait. Hold up. I am not, by any means, referring to the decision to support the legality of universal health coverage. What I mean is that, at day’s end, a judge voted unpredictably. The weight of this cannot be understated.

I am far from a Supreme Court expert. I do know, however, that eight of the nine justices are as predictable as the Miami summer. John Roberts, Antonin Scalia, Clarence Thomas and Sam Alito always side with the conservative/pro-business position. Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan always side with the liberal/anti-business position. Sure, there are minor moments of exception. But, 99 of 100 times, we pretty much know who’s voting for what. Anthony Kennedy, of course, is the one always in play. He is, to a large degree, the most important justice.

Here we were yesterday, however, with an absolute stunner. The swing voter toward the liberal position was not Kennedy, but Roberts—the Court’s chief justice and a man everyone who is everyone knows to be an arch-conservative. Until this vote, Roberts was abhorred by Democrats as an ally of all things corporate. He was the voice (and face, to a degree) of Citizens United, a decision that still makes my stomach spin. I loathed Roberts—not as a human, of course. But as a judge.


I no longer loathe John Roberts. But, again, not because of the specifics of health care reform. I no longer loathe the man because, for the first time in decades, he has reinvigorated my belief that the Court can be—and (gasp!) may well be—bigger than partisan nonsense; that it is a place for justice, political affiliation be damned. Some might not believe this, but I long for the day that Sotomayor and Kagan side with a conservative issue; long for the day that Thomas (my least favorite member of the court, hands down) rules on the part of freedom of speech or against a corporate giant. I don’t want a liberal or conservative court. I want a court that stands for justice, and only justice.

Yesterday, a step was taken in the right direction.

In the righteous direction.

7 thoughts on “The (Genuinely) Supreme Court”

  1. Jeff – C.J. Roberts sided with the more conservative members of the the Court on the commerce clause issue, which is the far more important aspect of this case going forward, because: (1) the commerce clause is the basis Congress tends to use to justify legislation and (2) because it is extremely difficult in practice to sell major pieces of legislation as tax measures. It is highly unlikely that Congress will be styling many pieces of legislation as “taxes” in the future. In fact, Congress didn’t style the ACA itself as a tax measure, that was just the government’s third alternative argument for upholding the law. The net effect of the Court’s opinion is: (1) to allow this one piece of legislation to survive, (2) to preserve the legitimacy of the Court with the public as a whole by giving the impression that they don’t always vote along partisan lines, and (3) to make it much harder for things like healthcare reform to pass constitutional muster in the future by limiting Congress’s ability to legislate under the commerce clause. Don’t underestimate C. J. Robert’s particular interest in #2: he is likely to be the face of the institution for a generation to come.

    Also: Clarence Thomas is a strong vote in favor of free speech. There are issues such as 1st, 4th, and 5th amendment rights where Justices Scalia and Thomas regularly vote with the Democratically-appointed justices.

  2. Clarence Thomas is a strong vote in favor of free speech? Hmm, I don’t know. Yesterday he dissented from the opinion invalidating the Stolen Valor Act.

  3. Wow! I am so surprised that you describe Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan as liberal/anti-business wing of the Supreme Court. Would you also describe the liberal wing as anti-life regarding abortion issues?

  4. was able to find, on google, that both Sotomayor and Kagan have sided with conservatives on important cases, though those cases were not as covered as IFSM vs. Sebelius did (not surprisingly). Kagan sided with conservatives on a Miranda Rights case, Howes vs. Fields:

    And Sotomayor sided with conservatives on Sorrell vs. IMS Health, stating that drug companies *are* allowed to buy information on doctors’ individual preferences on what they prescribe (striking down a state ban in Vermont.)

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