Conservatives still control high court despite healthcare ruling

Supporters of the healthcare reform act upheld by the Supreme Court last week should stop celebrating and take a deep breath. Nestled within the multiple opinions issued by the justices are some disquieting hints that the high court’s hostility toward government control over corporate power hasn’t changed.

To put it bluntly: The court’s four conservative horsemen are still in the saddle.

The original Four Horsemen were a conservative bloc that worked to overturn a string of PresidentFranklin D. Roosevelt’s New Deal initiatives in the 1930s. They held firm against expansive interpretations of the Constitution’s commerce clause that would give government the tools to address modern crises, such as the Great Depression.

The clause, which awards Congress exclusive power over interstate commerce, was at the heart of the arguments in court over the healthcare reform act, particularly the act’s mandate that individuals and families purchase insurance coverage or pay a tax-based penalty instead.


Among the issues was whether people who did not carry health insurance were participating in interstate commerce in a way that brought them within the clause’s authority. The reform law’s opponents argued that “inaction” — the failure to buy insurance — was by definition not commerce. Supporters responded that everyone in America participates in the interstate commercial market for healthcare, because sooner or later everyone will need treatment; those who don’t have insurance are simply making a choice about how, when or whether to pay for it that can be properly regulated by congressional action.

Four present-day conservative horsemen — Justices Antonin Scalia, Anthony M. Kennedy, Samuel A. Alito Jr. and Clarence Thomas — produced a joint dissent to Chief JusticeJohn G. Roberts Jr.'s majority opinion effectively upholding the mandate. Their dissent accepted the “inaction” argument, but also was shot through with what sounded like complaints about being forced to live in a modern world in which the definition of “commerce” is constantly expanded.

They wrote: “We now have sizable federal departments devoted to subjects not mentioned [by the Constitution] among Congress’ enumerated powers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development.”

In his majority opinion, Chief Justice Roberts showed himself to be fully as hidebound as they in his interpretation of the commerce clause. He found that the individual mandate would be unconstitutional if it were based on the commerce clause alone. But by ruling that it was a permissible offshoot of Congress’ taxing authority, he settled on a finesse that also dates from the 1930s. Back then, liberal Justices Louis Brandeis and Harlan Fiske Stone quietly advised New Dealers that the best way to inoculate the Social Security bill from attack by conservatives on the high court was by casting it as a tax measure. Their reasoning, followed by Roberts, was that the federal government’s taxing power is virtually unlimited.


It was left to Justice Ruth Bader Ginsburg, in a separate opinion on the healthcare act joined in whole or part by Justices Sonia Sotomayor, Elena Kagan andStephen G. Breyer, to identify the danger to congressional power to right wrongs implicit in Roberts’ views. His “crabbed reading of the commerce clause,” she wrote, “harks back to the era in which the court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”

Lest anyone mistake her point, she cited a New Deal-era case in which the court threw out a railroad workers’ retirement measure on the grounds that any law applying to “the social welfare of the worker [is] ... remote from any regulation of commerce as such.”

The intransigence of the original Four Horsemen drove FDR and other progressives to distraction. “We have been relegated to the horse-and-buggy definition of interstate commerce,” he fumed after an especially irksome decision.

By 1937, especially after being challenged by FDR’s ill-fated court-packing scheme that year, the Supreme Court had developed a more modern view of commerce. Since then, Ginsburg observed, the court “has recognized Congress’ large authority to set the nation’s course in the economic and social welfare realm.”

Is that authority again in question? Roberts in his opinion made no pretense that he actually favored the healthcare reform act or even agreed with its goals, but made his ruling on narrowly legalistic grounds. “We do not consider whether the act embodies sound policies,” he wrote. “Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

Little in last week’s ruling suggests that the court is inclined to stray from a path that has led it to enhance the power of big business and big money to get their way, arguably at the expense of the citizenry in general — the 99%, to use the formulation of the Occupy movement.

This course was established by the Roberts court’s egregious 2010 Citizens United decision, which invalidated limits on corporate participation in elections. Indeed, days before the healthcare ruling, the court summarily overturned a Montana ban on corporate political donations, thus signalizing that the trend unleashed by Citizens United applied to state and local elections as well as federal.

The four-judge minority in the healthcare case — traditionally the heart of a five-judge conservative majority when joined by Roberts — built their dissent around fears that if the individual mandate in health insurance stood, there would be no limit on federal authority to pursue social goals, however they might be defined. The risible broccoli analogy raised during oral arguments in the case in March made a prominent return to the stage — “the failure of some to eat broccoli may be found to deprive them of a newly discovered cancer-fighting chemical,” in which case moving against the inactivity of not eating broccoli would come within the government’s “unenumerated problem-solving powers,” the dissent posited.


To go from a law designed to extend healthcare to 30 million uninsured people to a fantasy in which the government shoves vegetables down its citizens’ throats is to envision a world in which the government in fact has no power, but private enterprise has free rein. In her opinion, Ginsburg contemplated this “outlandish” argument, which Roberts mentioned approvingly, with open suspicion. Mischievously, she enlisted conservative icon Robert Bork as a counterfoil, quoting him as writing, “Judges and lawyers live on the slippery slope of argument; they are not supposed to ski it to the bottom.”

Michael Hiltzik’s column appears Sundays and Wednesdays. Reach him at, read past columns at, check out and follow @latimeshiltzik on Twitter.

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