Is "Obamacare" doomed?

by Stephen Dunne

Image source: cdn.aarp.net

When Obama was elected, four years ago, as President, or even ‘Leader of the Free World’, many people, including myself, were eager to see if he would, or even could, live up to the promises made during the campaign trail. After disappointment after disappointment over many issues such as the budget deficit, Guantanamo Bay and the economy, what has been proclaimed as the crowning achievement of his presidency thus far is the passing of the Patient Protection and Affordable Care Act – aka ‘Obamacare’.

Providing health coverage to another 30 million people, leaving only a tiny proportion of Americans without healthcare and requiring private insurance companies to provide this insurance at affordable rates, the bill was hailed as one of the most successful reforms of America for a generation; it succeeded where Bill Clinton’s had failed in the early 1990s, and, therefore, has been apportioned its due controversy as a result of its colossal impact. However, despite the USA being the nation of liberty, issues over this bill will not be decided by the people (who arguably voted for the policy when they elected President Obama), but by six men and three women in one room in Washington D.C. – the United States Supreme Court.

Between March 26^th-28^th 2012, the Court heard six hours of oral arguments over the legislation after 26 states and innumerable organisations, and individuals challenged the bill as being unconstitutional. Four federal appeal courts have already ruled on this topic: two upheld the bill, one said that it was beyond the jurisdiction of the court and another held aspects of the bill unconstitutional. But all these rulings are worthless in the light of the opinion the Supreme Court will produce (currently presumed to be announced before the end of June). But if held unconstitutional, unlike its spiritual predecessor ‘Hilarycare’ which was declared “dead” in 1994 after Republicans seized Congress away from Democrat Bill Clinton, ‘Obamacare’ will not have been defeated by Congress and its elected members, rather the judiciary.  

This in itself demonstrates the tremendous change the court has undergone in recent decades to become the graveyard of Congressional legislation. The irony, I am sure, is not lost on the court that they are judging legislation unconstitutional, whilst their power of judicial review is not founded in the constitution, but was, rather, self-granted in 1803.

However, when one looks closer at the Supreme Court, its make-up and voting habits, then one can see that this case will not come down the votes of nine justices, but one man – Justice Anthony Kennedy, nominated to the court in 1988 under Reagan in the wake of the disastrous Robert Bork and Douglas Ginsburg nominations. Zooming out to look at the whole court: Chief Justice Roberts and Associate Justices Thomas, Scalia and Alito almost always vote together; they stand firmly as the conservative justices of the bench, all nominated by Republican Presidents, all holding similar views on jurisprudence and on the role of the court, as well as in their interpretations of the constitution itself. On the other side sit Associate Justices Bader Ginsburg, Breyer, Sotomayor, and Kagan – all Democrat-nominated, the latter two by Obama himself. Just as with the case of Bush v Gore in 2000, which decided the outcome of the presidential election, these eight will likely divide along partisan lines and the Court will be split along the typical 5-4 ruling that has become all too predictable in the modern Court.

But just which way will Kennedy vote? Ever since Sandra Day O’Connor’s resignation (she was the first female justice on the Court) in 2006, Kennedy has become the ‘swing vote’ for the Court. Although since Roberts joined the Court in 2005, Kennedy has slipped further to the right, he remains the crucial vote in the 5-4 split; he has sided with the conservatives approximately 75% of the time. However Kennedy, like O’Connor, holds the judicial philosophy that each case must be reviewed individually and that no judicial ideology is able to be all encompassing and overarching as Justice Scalia staunchly maintains. Moreover, Kennedy is notorious for faltering under the eyes of the liberal media and mass public opinion, who, knowing this, have begun to mobilise against him. Will this pressure be enough to push him to side with the liberals? Unlikely. But the pressure will almost certainly prevent Kennedy from supporting the striking down of the bill as a whole, and, instead, Kennedy will only support the dilution of the bill. The 5-4 split also would make it harder for the Court to issue an outright striking down of the bill and retain its credibility as impartial, especially as its image has been shattered in the post-Bush v Gore era, with many critics stating that the Roberts court has produced “embarrassingly bad decisions” thus far.

So, the bill will probably survive the Supreme Court chambers, but in what form? Will Obama’s legacy remain as a landmark piece of legislation, albeit not everything he had hoped for, or will the tattered remains the Court permits fly high above the courthouse as a constant reminder of the Court’s politicisation and the constitution's inability to consider public opinion?