By a vote of 5-4 today, the United States Supreme Court upheld the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act, popularly known among critics and supporters alike as “Obamacare.” In a move that surprised some and will help cement John Roberts' legacy as either an open-minded or politically astute jurist, depending on your view of him, the Chief Justice cast the deciding vote as the Court declared the mandate to be a tax.
A split decision was expected. A split decision was delivered. And make no mistake: the division was razor sharp. In his dissent, Justice Anthony Kennedy wrote:
In our view, the entire Act before us is invalid in its entirety.
Since Bush v. Gore wrenched the nation apart in 2000, most Americans believe their Supreme Court is deeply fractured along ideological lines. In actuality, relatively few of its cases are decided 5-4. But there is a tendency for the court's partisan divide to emerge whenever Americans are watching most closely.
Pivotal and headline-grabbing 5-4 cases since 2000, which can break either way, include: Zelman v. Simmons-Harris (2002), which allows taxpayer-funded school vouchers for religious schools; Grutter v. Bollinger (2003), which allows universities to use racial preferences as a criteria for admitting students; McCreary County v. ACLU of Kentucky (2005), which bans the ten commandments from being displayed in public courtrooms; the infamous Citizens United v. Federal Election Commission case of 2010; and just a few days ago, Miller v. Alabama, which struck down legislated mandatory life sentences for minors.
Thus, today’s split decision in Florida v. Department of Health and Human Services is just one more instance of the Court cracking along its ideological vein when deciding a highly politicized case. But there’s also something very different about this one.
You see, it wasn’t all that long ago conservatives championed the individual mandate that the Court’s Liberal wing (with a little help from Roberts) just upheld. In fact, conservatives actually invented the idea. The premise was originally proposed by Stuart Butler in a 1989 Heritage Foundation report entitled “Assuring Affordable Health Care for All Americans.”
It really doesn’t get much more conservative than the Heritage Foundation.
Butler’s brainchild was a right-wing counter to the left-wing plan for a single-payer system that carried an employee mandate. Many Democrats favored a national healthcare system, kind of like Medicare for all, with subsidies supplied by businesses. That is a socialist approach, and Republicans predictably offered an expansion of the existing free-market system as an alternative: the individual mandate, which forces everyone to purchase insurance from private companies or face a stiff penalty.
Ezra Klein recently did a nice job in The New Yorker of chronicling Republican support of the individual mandate by everyone from Bob Dole to George W. Bush, as well as many of today’s fiercest opponents. In 1993, Republicans even made it a centerpiece of their own failed healthcare bill, and of course as governor of Massachusetts, Mitt Romney successfully proposed and passed legislation featuring an individual mandate. But when Barack Obama suggested it, they all became apostates, decrying the mandate as unconstitutional. What was once seen as a guardian of capitalism was suddenly being smeared as socialism.
How to explain this? The simplest and most cynical answer is that Republicans have turned against their own policy to attack and hurt a president from the opposition party. And of course there is a tremendous amount of truth to that. Political partisanship in this nation is so rife (on both sides, I might add) that only the most naïve observer would discount it as one of the primary factors driving staunch Republican opposition to something they themselves created and then advocated for so long.
But what about the Supreme Court?
I’m not (yet) jaded enough to believe that this or that wing of the court decides a case simply because the result will score political points for their preferred party. Rather, in my opinion their decisions and dictates reflect ongoing and authentic changes in American political philosophies.
While partisanship is one key to understanding American electoral politics, in the big picture, there’s a lot more going on, and today’s decision reflects that. In short, the American political landscape has shifted during the last twenty years. Political ideology has moved to the Right since the end of the Cold War and the election of Bill Clinton. Whereas the Democrats used to be a center-left and dead-center party, they are now decidedly center-right. Likewise, the Republicans used to be dead-center and center-right but are now a far-right party. The healthcare debate has illustrated this change as conservatives comfortably turned against their own values from just a few years ago.
How to explain this? Klein chalks it up to the psychology of group-think and the nature of political parties. Personally, I suspect that the end of the Cold War may have fundamentally altered the way we understand ourselves as Americans. And there’s probably also a number of other important factors driving it. But regardless, the Florida decision speaks to a larger movement in American political ideology that cannot be explained by partisan bickering alone. Heck, last February even Stuart Butler publicly disowned his intellectual progeny; a guy who’s famous for only one thing now says that one thing is unconstitutional, and in an intellectual game of hot potato, claims it was actually thought up by deceased libertarian economist Milton Friedman. And Butler’s not even running for anything.
America has moved to the Right. Today's decision, though it infuriates conservatives, does not undermine that. It only reinforces it. Democrats were victorious, yes. But how so? They successfully advanced a version of health care reform dreamed up by conservative Republicans. That's today's America.