On Obamacare and the US Constitution


The Most Powerful Court in the World

 Will the Supreme Court Kill Affordable Healthcare?

President Obamaa former President of the Harvard Law Review and a Professor of Constitutional Law at the prestigeous University of Chicago, has contemptuously dismissed the argument that the Affordable Health Care Act is unconstitutional and all but dared the Supreme court to declare it so.  But as I listen to the legal wrangling and lawyerly double talk that characterize the arguments before  United States Supreme Court over the legality of President Obama’s Affordable Health Care  Act, I am once again reminded of how the life chances of Afro-Americans has often been determined by Supreme Court decisions.

Sometimes these decisions arise from the opinions of the justices in litigation brought to them in cases filed by plaintiffs in lower courts where complex constitutional issues are involved, such as Brown vs. the Board of Education.  Other times they arise from challenges to laws passed by the legislative branches of government on the state or national level whose constitutionality is in question, like the Affordable Health Care Act. 

In either case the Supreme Court has been a source of light and darkness; the impetus of great progress, and dramatic retrogression, over the course of American history.  In fact, it is fair to say that Supreme Court decisions in landmark cases have been a major force in shaping the present society we now inhabit.

In their rulings on everything from whether a woman can have an abortion; to whether Black Citizens enjoy the same rights as whites to life, liberty and the pursuit of happiness; to breaking up giant corporations like Standard Oil or the Bell Telephone System because they were too big; to the Citizens united decision which threatens to turn our democracy into a plutocracy by allowing corporations to contribute unlimited amounts of money to support specific candidates through Superpacs; the Supreme Court has shaped contemporary American society in fundamental ways.

Any objective reading of major decisions the High court has taken will reveal that the dominant pattern of these decisions reflect the ideology and concerns of the party and President who appointed them.  There are exceptions, but they prove the rule.

The experience of Justices David Souter and Hugo Black are instructive.  When Justice Black was elevated to the Bench in 1937, he had served several terms in the US Senate, where he had supported President Franklin Delano Roosevelt’s attempt to expand the Court by Six Justices, and supported his belief that the government should intervene in the management of the economy in order to assists citizens who were suffering through the Great Depression.

But Roosevelt overlooked the fact that Black had been a member of the Ku Klux Klan – having joined the Robert E. Lee Klan No. 1 of Birmingham on Sept. 11, 1923and it became a sensation when it was revealed in a Pulitzer Prize winning series in the Pittsburg Post-Gazette by Ray Sprigle.

Chief Justice Roberts

Can this Joker be trusted to Save Obamacare?

Yet in spite of the fears generated by the revelation of Black’s Klansman’s past, for most of his tenure on the Court Justice Black’s opinions belied his earlier history.  But in his final years on the bench, when the Civil rights movement was sweeping his native southland, his votes began to reflect his reactionary racist Alabama roots.  For instance he voted in favor of the legality of Southern police departments arresting Civil Rights demonstrators, arguing that their actions were not protected under the “free speech” provisions of the First Amendment.

Although his Justice Souter was selected as a conservative by George H. W. Bush, when the 84 year old liberal lion of the High Court William Brennan died, and Bush replaced the greatest defender of Civil Rights in American history, Thurgood Marshall, after his passing, with right-winger Clarence Thomas in 1991, the radical righties on the Court rejoiced and prepared to reverse land mark decisions on critical issues like civil rights, abortion and religion –all triumphs of a liberal Court.   But Souter flipped the script and became their worst nightmare.

Hence when George II got an opportunity to appoint a Justice to the Court the chant from conservative ranks was “No more Souters!”  Thus we got John Roberts, who as a deputy to reactionary Solicitor General Kenneth Starr, had actually filed briefs urging the Court to reverse liberal decisions.  Now, as Chief Justice, some Court watchers believe that in a 5-4 decision he could actually be the deciding vote in favor of the Affordable Health Care Act.

Although it would go against his ideological inclinations, and those who look to him to deal the death blow, his reverence for the integrity of the Court will over-ride ideology.   Stranger things have happened on the High Court.  Let’s hope the optimists are right, and if you are so inclined fall on your knees and pray; for the survival of Obamacare is a life and death matter for millions of Americans….and Republicans really don’t care!



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