Skip to main content

If nothing else, today's Supreme Court Affordable Care Act decision demolished a long standing myth about the political ideology of this highly conservative court:

Justice Anthony Kennedy is no swing vote.  He is a lockstep conservative vote, no different from Scalia, Alito, and Thomas.

I initially didn't focus on who wrote the primary conservative dissent.  When I found out it was Kennedy, I was flabbergasted.  Just take a look at some of these statements:

As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers, see United States v. Butler, 297 U. S. 1, 65–66 (1936). Thus, we now have sizable federal Departments devoted to subjects not mentioned 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.
What?  Did Justice Kennedy just articulate the crazy wingnutter view that Education, HHS, and HUD are all unconstitutional, and only exist because activist courts in the past corrupted orginal intent to permit such a thing?  Really?

And this:

If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause
becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.”
The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).
Federalist No. 33?  One of the darlings of the Tea Party, for its excoriating language concerning the federal government making "tyrannical use" of its powers?

And this, in response to the tax argument:

Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.
Uh, Justice Kennedy, what in the heck do you think happened at the ballot box in 2010?  You think that the ACA had nothing to do with all those Democrats losing, and all those Tea Party nutjobs getting elected?  What world are you living in?

I could go on and on, but this is pretty much the clincher.  In response to the severability argument (where Kennedy finds that there is no severability clause, such that one unconstitutional clause invalidates the entire statute:

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this
case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less
obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by
our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it. For the reasons here stated, we would find the Act invalid in its entirety.
Oh my -- liberty is at peril if we uphold this act of Congress?  Call out the militia!

Not to mention the fact that his entire dissent adopts, in whole measure, the "Constitution in Exile" theory -- that we've strayed far, far away from original intent, and that everything done post-Lochner (at a minimum) is invalid, including every piece of New Deal legislation (and yes, that means Social Security too).

Seriously, I am absolutely flabbergasted that Kennedy, who was considered the moderate swing vote, authored this piece of Tea Party garbage.  This dissent is perhaps more shocking than Scalia's political broadside in the Arizona immigration case, because at least I expect political hackery from Scalia.  But again, the idea that Kennedy is any kind of swing vote should be dead and buried today.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site