The Extreme Right-Wing Takeover of the Supreme Court Suffers a Setback

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Supreme Court - Credit: J. Scott Applewhite/AP
Supreme Court - Credit: J. Scott Applewhite/AP

The Supreme Court on Thursday threw out yet another challenge to Obamacare while also letting a Catholic foster care agency in Philadelphia discriminate against LGBT people. This may seem like the court tugging in two different directions, and in many ways it is. But taking a step back, something important is happening here: Chief Justice Roberts is planting a flag to prevent the extreme conservative wing of the Court from taking over. And today’s decisions show how successful he can be when enough other justices, including the Court’s three liberals, join this effort against right-wing extremism.

So what happened today? First, the Court said in a 7-2 decision that Texas’ latest challenge to Obamacare was not properly brought in federal court. You may remember that Obamacare has made it to the Supreme Court twice before. In 2012, the Court ruled 5-4 that the law’s requirement that everyone have insurance is constitutional, but said that the federal government cannot force states to expand Medicaid. As a result, Obamacare survived, but states had to make the affirmative choice to join the expanded Medicaid program, which 39 states and the District of Columbia have now done.

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Then, in 2015, the Court once again upheld Obamacare in a 6-3 opinion. That case allowed people in all states to get tax credits for purchasing health insurance under the program. A contrary ruling would have obliterated the financial structure of Obamacare, rendering it basically useless. Both this decision and the 2012 decision were written by Chief Justice Roberts.

Thursday, the Court once again threw out a challenge to the law, this time in a decision from Justice Breyer. This new challenge was brought by Texas. After Congress in 2017 removed the penalty for not having health insurance under Obamacare, Texas sued claiming that the law now imposed an unconstitutional requirement — a mandate to have health insurance but without a penalty. Texas even went so far as to ask the courts to strike down all of Obamacare because of this one change, including its requirement that there can be no discrimination against those with pre-existing conditions and that preventive healthcare must be covered by health insurance companies. This third challenge was argued last November to a Supreme Court that had been radically changed since the last Obamacare case thanks to the addition of three Trump-appointed Justices — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — so many people thought this new case had a strong chance of gutting, if not ending, Obamacare.

That didn’t happen. Thursday’s 7-2 decision against Texas ruled that the state was not the right party to bring suit challenging this provision. The Court did not address the merits of Texas’ claim, but instead relied on a procedural doctrine that, in order to bring a lawsuit in federal court, the party in court has to be injured and the injury has to be caused by the challenged law. The decision today found that the injury Texas asserted — increased costs because more Texans now have health insurance — was not caused by the individual mandate. Thus, the challenged provision did not cause Texas’ injury, so Texas could not sue. Obamacare has now survived three challenges in the Roberts Supreme Court.

In a separate opinion today, the Court unanimously found against the City of Philadelphia and for a Catholic foster-care agency that refuses to place children with LGBT couples. Philadelphia had argued that it could kick the Catholic agency out of the program because its discriminatory policy violated the city ordinance prohibiting discrimination based on sexual orientation. Like the 2018 case of the baker in Colorado who refused to bake a cake for a gay couple getting married, this was a showdown between anti-discrimination law and claims of religious liberty.

The unanimous ruling today is a blow to Philadelphia’s efforts to enforce its protections for LGBT people. However, the ruling did not go nearly as far as the Catholic agency wanted the Court to go. The Catholic agency had asked the Court to overrule a 1990 case that said that as long as a law is neutral toward religion and applies to everyone, a religious entity can be forced to follow a law even if it conflicts with its religious beliefs. To the Catholic agency, this precedent is too restrictive and permits governments to force religious entities and people to follow laws they disagree with. But, according to the opinion authored by conservative Justice Scalia, allowing a religious exemption to general laws would result in anarchy because religions would claim exemptions to all sorts of laws that everyone has to follow.

Though the opinion today was unanimous, the Justices split in how they viewed the case. A six-Justice majority, led by Chief Justice Roberts and joined by the Court’s three liberals and Justices Kavanaugh and Barrett, ruled that the 1990 case still applied and that Philadelphia failed one of the basic requirements of that case — the Court said that Philadelphia’s law was not generally applicable because there were exceptions baked into the law. With those exceptions, the Court found that the City unfairly treated the Catholic agency by not also giving them an exception and thus violated the Constitution’s protection of religious liberty.

While these cases point in opposite political directions — throwing the Obamacare case out of court is a big liberal win and allowing the Catholic agency to discriminate against LGBT people is a big conservative win — they have an important thing in common: a majority of the Court held off the far-right faction of the Justices. In both cases, Justices Alito and Gorsuch (and Justice Thomas in the Philadelphia case) staked out far more radically conservative positions; and in both cases, those positions lost. In the Obamacare case, the ultra-conservative Justices would have allowed Texas to bring the case, found that the individual mandate was now unconstitutional, and struck down the entire Obamacare law (not just the mandate) as a result. In the Philadelphia case, these Justices would have overruled the 1990 case and allowed religious exemptions to proliferate, leading us down the path of anarchy that Justice Scalia warned about three decades ago.

However, these extreme conservative positions did not prevail because Chief Justice Roberts, joined by the Court’s liberals and fellow conservatives Kavanaugh and Barrett, seems to want this Court to be a conservative one, but not radically so. There may come a time when the ultra-conservative flank prevails — and next year will put that to the test when the Court re-considers abortion, guns, and possibly affirmative action — but that time has not yet arrived.

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