SALON

Glenn Greenwald

Saturday, Jul 7, 2012 10:22 AM UTC

Kagan’s Medicaid vote

The Obama Court appointee once again sides with the right-wing faction in an important ruling

By

Topics:

(updated below)

During the debate over Elena Kagan’s Supreme Court nomination, those of us who opposed her selection argued that there was a substantial risk that she would join with the Court’s four right-wing Justices more often than her predecessor, John Paul Stevens, did, and more often than other potential nominees (such as Diane Wood) would, and thus have the effect of actually moving the Court to the right (using “left” and “right” here in its conventional sense). The argument was not that she would be a Scalia clone; it was that her deliberate lack of a public record on judicial philosophy, combined with the isolated glimpses into her worldview that were available, made this an unnecessarily risky choice to replace Stevens, who had become the leader of the “liberal” bloc.

Particularly since she has so often recused herself on key cases, the record is still too incomplete to permit either side of this debate to claim vindication. There have, however, been several cases in which Kagan has joined with the Court’s Scalia/Thomas/Alito/Roberts bloc in important areas, including her support for the narrowing of Miranda rights (the stalwart protection of which has long been a crown jewel of liberal jurisprudence) as well as her denial of review of disturbing death penalty sentences and an oppressive free speech ruling. In each of those cases, President Obama’s other Court appointee, Sonia Sotomayor (whose nomination I enthusiastically defended), as well as Ruth Bader Ginsburg, were on the opposite side from Kagan.

The Supreme Court’s health care ruling two weeks ago provides perhaps the most potent example yet justifying these concerns about Kagan. Although it was John Roberts’ ideological apostasy that has received the most attention, Kagan joined with the Court’s five right-wing Justices (as well as Stephen Breyer) to strike down one of the most important provisions of the bill — its Medicaid expansion program — on the ground that it was unconstitutionally coercive of the states (by threatening states with a loss of benefits for non-participation); on that issue, it was Sotomayor and Ginsburg in dissent. Politico‘s Josh Gerstein examines how little attention Kagan’s vote has received from liberals:

In the landmark health care decision last Thursday, a Supreme Court justice broke with that justice’s political roots, snubbed the justice’s ideological fellow travelers on the court and confounded critics who had predicted the opposite outcome.

I refer, of course, to Justice Elena Kagan.

Kagan voted for portions of Chief Justice John Roberts’s controlling opinion declaring unconstitutional a major provision in President Barack Obama’s health care law, namely the Medicaid expansion.

While Roberts has been denounced by conservatives as an ideological heretic and turncoat for siding with liberals to uphold the individual mandate in the law, Kagan’s conclusion that the law’s Medicaid expansion was unconstitutionally coercive toward the states has triggered no similar wave of condemnation of her by liberals.

The absence of public outrage toward Kagan is particularly notable since she wasn’t parting company just with her liberal ideological counterparts, but with the president who appointed her to the court and with the administration she served as Solicitor General immediately prior to taking the bench.

“Who knew that the Solicitor General thought the Medicaid expansion was unconstitutional?” said Kevin Outterson, a law professor at Boston University who filed an amicus brief urging the court to preserve the Medicaid provisions as written.

Asked how likely he thought it was prior to Thursday’s ruling that Kagan would wind up taking such a stance, Outterson said: “Never in my wildest nightmares.”

Gerstein includes a number of caveats, including the speculative theory that Kagan’s vote on this provision might have been a strategic concession to induce Roberts to uphold the law in general. That, like anything else, is possible, though there’s no evidence that this happened notwithstanding the avalanche of leaks that have come out of the Court regarding Roberts’ vote. It was the Medicaid expansion provision that was the primary argument against liberal opposition to the law — it’s reckless to oppose a law that will give health insurance to 30 million people who cannot now afford it – and this part of the Court’s ruling, joined by Kagan, could jeopardize at least some of that expanded coverage.

This is more than an isolated instance. In Kagan’s short time on the Court, it’s beginning to look like a trend. She’s issued some impressive (dissenting) opinions and has, more often than not, been a reliable vote with the “liberal” wing of the Court (neither of which is at all surprising). But her propensity to join with the Scalia-led bloc in criminal justice cases, along with this latest ruling, seems a harbinger of things to come. That’s particularly true since one of the areas of greatest concern raised by her appointment — her views on broad theories of executive power in the national security and Terrorism context — has yet to be tested because she has recused herself from the bulk of cases in that area due to her advocacy for Obama’s expansive theories when she served as his Solicitor General (recusals which resulted in several right-wing, pro-government rulings being upheld). Once she starts issuing opinions in that area, it will be much easier to assess the validity of the pre-confirmation concerns that were raised, but these preliminary signs — while admittedly far from dispositive and sometimes even mixed — suggest a willingness to join with the Court’s conservatives in areas where Stevens (as well as the other candidates who competed with Kagan) would not have.

 

UPDATE: Elizabeth Warren, asked about the Medicaid ruling last week, said “she found it ‘pretty shocking’ that seven justices would create a “new limitation on congressional power to condition spending” and ”roll[ed] her eyes when it is mentioned that her former colleague Elena Kagan was one of those seven.” Slate‘s Dahlia Lithwick asserts that “liberals have been strangely silent” about Kagan’s vote because liberals generally expect more betrayals from Supreme Court Justices than conservatives do and have a less clear idea of what to expect from Justices, but she argues that liberals are perhaps too indifferent to Court appointees (“instead of smugly chuckling at the ways conservatives have turned on their chief justice this week, liberals might also want to take a page from their playbook. The courts matter. How we talk about the courts matters. And who is on the courts matters as well”).

Next Article

Related Stories

More Related Stories

Featured Slide Shows

The week in 10 pics

close X
  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11
  • Lisa Montgomery embraces her nephew Thursday after a tornado tore apart her home in Cleburne, Texas. The twister killed six people and destroyed entire swaths of the North Texas town.
    Credit: AP/LM Otero

  • Jack McMahon, the defense attorney for abortion doctor Kermit Gosnell, speaks outside the Criminal Justice Center in Philadelphia Tuesday. His client was convicted of killing three babies in his clinic, and will serve multiple life sentences.
    Credit: AP/Matt Rourke

  • A photo taken Monday captures Vice President Joe Biden's response to a Milwaukee second-grader's innovative proposal to end America's epidemic of gun violence. This guy!
    Credit: AP/Jenny Aicher

  • Sen. Rand Paul, R-Ky., flanked by a grouper-eyed Michele Bachmann, addresses the IRS' admission that it targeted Tea Party groups in advance of the 2012 election. In an op-ed for CNN Thursday, the Kentucky senator slammed the president for his faux outrage.
    Credit: AP/Molly Riley

  • Ousted IRS chief Steven Miller is sworn in on Capitol Hill Friday. Miller testified before the House Ways and Means Committee on the extra scrutiny the agency gave conservative groups applying for tax-exempt status.
    Credit: AP/J. Scott Applewhite

  • Attorney General Eric Holder pauses as he testifies on Capitol Hill before the House Judiciary Committee Wednesday. Holder is under fire, among other things, for the Justice Department's gathering of phone records at the Associated Press.
    Credit: AP/Carolyn Kaster

  • O.J. Simpson sits during an evidentiary hearing at Clark County District Court in Las Vegas, Nev., Thursday. Simpson, who is currently serving a nine-to-33-year sentence in state prison for armed robbery and kidnapping, is using a writ of habeas corpus to seek a new trial.
    Credit: AP/Las Vegas Review-Journal/Jeff Scheid

  • Major Tom to ground control: On Sunday astronaut Chris Hadfield recorded the first music video from space, a cover of David Bowie's "Space Oddity."
    Credit: AP/NASA/Chris Hadfield

  • When it rains it pours. President Barack Obama speaks during a news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, inexplicably inspiring an #umbrellagate Twitter meme.
    Credit: AP/Jacquelyn Martin

  • A smoke plume rises high above a road block at the intersection of County A and Ross Road east of Solon Springs, Wis., Tuesday. No injuries were reported, but the the wildfire caused evacuations across northwestern Wisconsin.
    Credit: AP/The Duluth News-Tribune/Clint Austin

  • Recent Slide Shows

  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11

Related Videos

Comments

 137 Comments

Comment Preview

Your name will appear as username

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>

Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of three New York Times Bestselling books: two on the Bush administration's executive power and foreign policy abuses, and his latest book, With Liberty and Justice for Some, an indictment of America's

two-tiered system of justice. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.




Continue Reading

follow salon

Most Read

Popular on Reddit

links from salon.com

From Around the Web

Presented by Scribol
listener_new_rect The Listener: Chekhov's story mirrors Russia's own

Latest Tweets

Recommendations