Was today's ruling a victory for justice over corporate power? Did Chief Justice John Roberts rise above partisan differences because that's where an honest reading of the law took him?
Nah. The majority on this Supreme Court is a wholly-owned subsidiary of Corporate America. Call it SCOTUS™ Inc., and it's brought to you by the same fine folks that gave you Citizens United and Bush v. Gore. John Roberts is its CEO, not its chief justice.
The point isn't to reinforce anybody's cynicism. The point is to act more effectively on behalf of our ideals, by seeing things as they really are.
Roberts Rules
It was a shrewd move. Remember, as CEO of SCOTUS™ Inc., John Roberts is running the subsidiary of a large conglomerate. I've had that job myself, and trust me: you've got to please the parent or you're out of business.
By casting the decisive vote (who knows whether it really was the deciding vote, or whether the right-wing majority made it look that way) Roberts acted in the best interests of corporate conservatism, for-profit healthcare companies, and -- most importantly of all -- of the far-right political force which is today's Republican Party.
He had three options: Strike down a signature piece of Democratic legislation in its entirety, which would look highly partisan; strike down the individual mandate, which would look even worse since it was a conservative Republican idea; or uphold the law in a way that's designed to do maximum political damage to the Democrats and protect the Court's current corporate status.
Weighing the Options
Striking down the law would have cost the Court immeasurably in what corporate accountants call "good will. "It would have widened and deepened the common (and accurate) perception that this Court's majority acts in a partisan, ideological, and pro-corporate manner, regardless of the law. It would have polluted the Court's brand even further.
It also would have given new momentum to the single-payer movement, galvanized Democrats, alienated independents, and strengthened the argument against electing a Republican president who would provide more justices in favor of Bush v. Gore type decisions.
What about striking down the individual mandate alone? The mandate has provided great rhetorical fodder for the right (we were among the few to predict it would, or to accurately predict the political impact of this law), so why deprive them of such a good political tool? It was never in the GOP's partisan interests to do that. It would have left the bill's most popular provisions intact, giving the Democrats a stronger bill to run on and weakening the GOP's case against it.
Besides, it's a great boon for health insurers. I never believed the court would strike down the mandate and leave the law's other provisions standing. That would be an actuarial nightmare for the insurance industry. They'd never tolerate a move like that.
The Decision
By defending the law, Roberts made the right decision for Corporate America. He was also able to severely limit the federal government's ability to regulate commerce, which I believe is a major setback in a number of legal areas that's likely to provide a lot of benefit to corporations in the years to come. Since I'm not an attorney, I'll leave that analysis to others. But I'm surprised that aspect of the ruling hasn't received more attention.
Stock prices in the for-profit hospital industry soared, rising 7 percent in heavy trading immediately after the Court ruling. Stocks for the nation's largest health insurers barely moved, despite what must have been some heavy pre-Court betting that the conservative majority would overturn the entire law.
That tells us something important: Roberts' decision to side with the liberals and moderates didn't exactly create a revolution in our health care economy.
Like the head of any subsidiary, Roberts made the choice that was best for his parent. Sure, he's taking some heat from the Right. Like any good executive, he's willing to take one for the team.
He may not be much of a chief justice, but John Roberts is a very good CEO.
Red Meat
By joining with the liberals, Roberts was able to write the ruling himself. He did it in a way which the other four disagreed with, but which was designed to provide talking points for Republicans and the Right. He labeled the mandate's penalty a "tax" (which it is; so is the so-called "Cadillac tax" on higher-cost health plans, which Obama campaigned against and then personally inserted into the bill).
That was red meat, and it was immediately gobbled up by the likes of Sarah Palin. "It is a tax," said Palin. "Obama lies; freedom dies." But Palin also "thanked God" for the ruling because she said it would fire up her base. "We did not want this tax," she said. "We can't afford this tax."
Democrats, take heed: That's the battle cry, and the battle plan, for November.
Roberts also used the occasion to savage Medicaid's expansion, by limiting the federal government's ability to withhold funds for states which do not cooperate. This was apparently the result of some horse trading among the justices, but Roberts seized the opportunity for more incendiary conservative language. He called that kind of withdrawal "economic dragooning" on the part of the federal government, which is more red-meat rhetoric for Republican campaigns to use in November. In the real world, this decision has precisely the opposite effect: It allows states to "dragoon" Federal funds without provide the full range of coverage for which those funds are intended. (Will that happen? George Zornick has more.)
In case the political nature of Roberts' language was not clear, he added, "It is not our job to protect the people from the consequences of their political choices."
Who wants to argue that those words don't come from a partisan Court?
10 Lessons for the Battles to Come
There's a corporate war against the middle class and its financial security, with many battles yet to come. Will the left stop waging them from a defensive position? There are 10 lessons to be learned from this ruling:
1. Declare victory where victory is real. Democrats should declare victory for the popular provisions of the law: no exclusions for pre-existing conditions, coverage for those who can't afford it, the extension of coverage for children to age 26. Wendell Potter offers a great example of how to "sell" this law to the American people.
2. Don't BS the public. But Democrats would be foolish to oversell this law. In response to the ruling, the President said today that the Court has "reaffirmed a fundamental principle that here in America -- in the wealthiest nation on Earth -- no illness or accident should lead to any family's financial ruin." That's the wrong approach for a number of reasons, one of which is that people still feel that they can't afford health care -- and they're right.
A majority of those who declare bankruptcy due to medical expenses already have health insurance, and the protections in this law aren't enough to prevent that from happening. Premiums and out-of-pocket costs continue to rise for insured Americans. Health insurance costs rose more last year than they had in six years, to more than $15,000 for a family of four, and they've risen by 50 percent since 2003. Democrats should acknowledge these problems, discuss ways this law will help and, most importantly, promise to do more in the next term.
3. Pledge to strengthen the law. That means Democrats should promise to improve this law, not attempt to suggest it provides more than it does. They should frame the November elections as choice between "helping us do even more for the American people" or "Republicans gutting your health care today, while you're young, and tomorrow when you reach age 65."
4. Strike back at the "tax" message. Democrats have to forcefully explain that the law's penalties will only apply to a very small number of people before that the right's "we can't afford this tax" mantra takes hold in the public mind. It wouldn't hurt if they reminded people that the penalties are almost unenforceable, too.
5. Keep the pressure on. Independent progressives should press Democrats in Washington for better cost controls, and less corporate power over life-and-death decisions. There are some mild limits on profit-driven healthcare in this bill, but they're not enough. (As a former health insurance insider, I can also tell you that many of them are easily gamed.)
Progressives inside and outside the Democratic Party should keep up the fight to protect health care from rapacious profit-seeking at the expense of the nation's physical and economic well-being.
6. Defend Medicare. The independent left should fight for Medicare -- to protect it from the depredations of the Ryan/Romney voucher plan, and to demand that the president and his party defend its benefits without equivocation, waffling, or "deficit" talk. Protecting Medicare means going after the for-profit hospitals and other players in the system who are driving its costs sky-high.
That means that Democrats from Obama to Pelosi need to stop talking the austerity language of "Simpson Bowles," a plan which would cut both Social Security and Medicare, and stake a position as unequivocal fighters for the middle class and lower-income Americans.
7. Expand Medicare. The left should move toward Medicare-for-all, a position I was originally reluctant to take because I thought it was politically unfeasible. This process has made it clear that our system makes anything but Medicare-for-all, or at the minimum a public option plan, politically unfeasible.
That would mean a trillion-dollar change to our economy, so it won't be easy. But that needs to be the next goal. I'm with Bernie Sanders and John Nichols on this one. It'll take a while, but it's the right star to steer our ship by.
8. Medicaid is a core part of our values. Our decency, integrity, and stability as a society depends on our ability to ensure that no one dies, is disabled, or suffers needlessly because of economic hardship. Roberts' assault on Medicaid is a warning sign that this program is in danger.
Republicans want to gut Medicaid. Will Democrats stand up for it?
9. SCOTUS™ matters. Whatever disappointments you may have with Barack Obama -- and I've had plenty of them -- the next president could very well pick several more members of the Court. President Romney would choose judges who are willing to bend the law into a pretzel over and oner, just as Scalia, Thomas, and the others on the right have done, to serve the interests of the corporate class.
10. Don't forget about nutrition. Don't let them gut food programs that are essential to the health of our children. They need a balanced diet to make sure they become strong, healthy, productive adults.
And yes, a balanced diet includes broccoli.