In a 5-4 ruling, the U.S. Supreme Court upheld the constitutionality of the Affordable Care Act. But as the political, legal, and policy world scrutinizes the details of today’s ruling, it’s worth pausing to appreciate just how far the four dissenters – who filed their dissent jointly – were willing to go.
The conventional wisdom, which was neither conventional nor wise, was that the individual mandate was in deep trouble, but it was unrealistic to think the justices would be so radical as to kill every letter of every word of every page of the law. Such a breathtaking move would simply be unnecessarily radical.
And yet, as of this morning, four justices – Alito, Kennedy, Scalia, and Thomas – insisted on doing exactly that. The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law – the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.
To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. I can’t read Chief Justice John Roberts’ mind, but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks – had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.
Roberts’ motivations notwithstanding, it’s important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.
There are some who argue that this year’s presidential election isn’t especially important. I hope those who believe this consider what today’s court minority was prepared to do, and what they will do with just one more vote.