Surprise or Not?

Surprise or Not?

Gilbert N. Kahn is a professor of Political Science at Kean University.


Rarely have so many different elements of American society awaited a U.S. Supreme Court decision as was the case for this morning’s decision which essentially sustained the constitutionality of the Affordable Healthcare Act. (Even the Bush vs. Gore decision in 2000, which had drama as well as politics and history coloring the decision, was not in the classical realm of the Court considering the constitutionality of a major piece of legislation.)

While today’s decision was not a perfect one for its advocates and the Obama Administration it was much different than many Supreme Court observers had expected after hearing the oral arguments some months ago. There are many who will address the specific legal questions in the case, but this decision has a number of important political and historical ramifications which need to be underscored.

With respect to the Supreme Court itself, Chief John Roberts, as many had assumed very much wanted to write the majority opinion in this case. Like Chief Justice Earl Warren in the Brown case—or even Chief Justice John Marshall in the early 19th Century– Roberts saw this as his opportunity to put his name on history. In fact some had assumed he would write to overturn by 5-4 but would sustain with a 6-3 vote using Justice Kennedy as a cover. Roberts, however, went one step farther than even those scenarios. He led the Court’s liberal wing in the majority. How dramatic!

He picked up Congress’ taxing power, to write his opinion, and dropped the commerce clause argument, and brought together a majority. Roberts no doubt surprised his colleagues on the right as much as he did those on the left, but he brought his name and that of his leadership of this Court into the history books.

At the political level, the President received a victory which he probably never expected. There were probably more hours spent both in the White House and among his re-election team preparing various scenarios of how to respond to whatever bad blow healthcare might receive from the Court. Instead, they were able to march out and proclaim vindication and victory.

For the presumptive Republican nominee Mitt Romney, this decision—no matter how he will try to paint it—is a blow to his campaign and to one of his most important campaign planks against the Obama Presidency. Say what he will about what he will do once elected to overturn Obamacare, Romney understands that this is only more rhetoric than it is substance. Passing a new law probably would require a 60 vote majority in the Senate, plus the House. It would then need to create a compelling environment and case for the Court to consider turning itself around; something no Court ever likes to do.

So today is a day in America where the law, politics, history, and millions of Americans without healthcare won. Not a bad harbinger on the advent of next week’s Independence Day celebration.

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