The Battle for the Supreme Court’s Decision on Obamacare

Curtis Coleman, Contributing Author: Where the Patient Protection and Affordable Care Act (PPACA or “Obamacare”) and the Supreme Court are concerned, one can be certain of two things: (1) The constitutionality of Obamacare will be decided by the Supreme Court, and (2) the battle for the Court’s decision has already begun.
A quick snapshot of the current Court:

Chief Justice John Roberts

John Roberts: conservative
Samuel Alito: conservative
Antonin Scalia: consistently conservative
Clarence Thomas: consistently conservative
Anthony Kennedy: the swing vote; considered a conservative; sometimes votes with the liberal faction
Elena Kagan: expected progressive
Sonia Sotomayor: consistently votes with the progressive bloc
Stephen Breyer: consistently liberal
Ruth Bader Ginsberg: very liberal, consistently votes against conservatives

Five of the nine current Supreme Court Justices were nominated by Republican Presidents: Associate Justice Anthony Kennedy (Reagan, 1988), Associate Justice Samuel Alito (Bush, 2006), Chief Justice John Roberts (Bush, 2005), Associate Justice Antonin Scalia (Reagan, 1986), and Associate Justice Clarence Thomas (Bush, 1990).

Four were nominated by Democratic Presidents: Associate Justice Ruth Bader Ginsburg (Clinton, 1993), Associate Justice Stephen Breyer (Clinton, 1994), Associate Justice Sonia Sotomayor (Obama, 2009), and Associate Justice Elena Kagan (Obama, 2010).

It takes four votes for the Court to hear a case. One would assume four votes would come from Roberts, Alito, Scalia, and Thomas. The Court decides a case by a simple majority of the justices who hear the case.

The Court’s two most conservative justices are now under intense attack from progressive groups and liberal members of Congress. According to Andrew Reinbach of The Huffington Post, “Representative Anthony Weiner (D-Queens and Brooklyn, NY) and a group of liberal Congressional Democrats are said to be drafting demands that Associate Supreme Court Justice Clarence Thomas be disbarred in Missouri.” (Weiner also announced this week that he plans to submit legislation that would require a two-thirds majority in both the Senate and House before changes could be made to the Social Security program, making it much more difficult to enact desperately needed reforms to the program.)

Associate Justices Antonin Scalia and Samuel Alito are also under aggressive attacks from liberal groups. According to Kenneth Vogel in Politico, “The sharp questioning of the impartiality and ethics of Justices Clarence Thomas, Antonin Scalia and, to a lesser extent, Samuel Alito, represent the most concerted attack on a bloc of justices since the early 1970s, when conservatives waged a long campaign against the liberal justices of the Warren court, most notably Justices William O. Douglas and Abe Fortas.

“Thomas and Scalia have been accused of undermining public confidence in the court by engaging in partisan politics and making decisions that could benefit the political and financial interests of family members and associates. And liberal groups have called on the Justice Department to investigate whether the two justices’ alleged conflicts of interest should have disqualified them from voting in the 2010 decision on political spending, Citizens United vs. Federal Election Commission.
“For liberals, the disposition…of the court is of looming concern as key aspects of Obama’s ambitious domestic agenda appear to be on a collision course with the Supreme Court’s conservative bloc, which has been able to lure swing Justice Anthony Kennedy on key cases, including Citizens United.”

Make no mistake. The battle over the constitutionality of Obamacare as will be decided by the Supreme Court is already well underway, and there will be frequent and heated demands from the left for Justices Thomas and Scalia to recuse themselves from participating in the decision, possibly explaining some of the Obama Administration’s foot-dragging on advancing the issue to the Court. Welcome to Chicago-style jurisprudence.
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Curtis Coleman is the President of The Curtis Coleman Institute for Constitutional Policy and contributing author to the ARRA News Service.

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Tags: Curtis Coleman, Institute for Constitutional Policy, US Constitution, Supreme Court, Obamacare, Anthony Kennedy, Antonin Scalia, Clarence Thomas, Elena Kagan, John Roberts, PPACA, Ruth Bader Ginsburg, Samuel Alito, Sonia Sotomayor, Stephen Breyer, Constitutional Crisis, Health Care Reform To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. Thanks!