Kagan Health Care Vote Raises New Questions

Elena KaganDemocratic Supreme Court Justice Elena Kagan joined conservative justices June 28 in a 7-2 vote to strike down Medicaid expansion by states under the Obama-backed Affordable Care Act. Kagan, at left, joined the first ruling since the 1930s to void federal legislation for exceeding congressional power under the Commerce Clause.

Her vote has escaped major attention in the general media because a separate 5-4 majority, including her, upheld the law's insurance mandate on the grounds that Congress could impose it as a "tax." But her legal rationale has important long-term consequences for other federal legislation if the Court starts returning to a theory court conservatives used during the New Deal until 1937 to thwart Democratic legislation.

Legal critic Glenn Greenwald noted problems with her opinion in a Salon column excerpted below entitled, Kagan’s Medicaid vote. Greenwald, like the Justice Integrity Project, opposed Kagan's Senate confirmation to Supreme Court in 2010. Our Project did so out of concerns over her commitment to civil rights. Greenwald shared those views, but also regarded her as a shaky replacement for Republican liberal John Paul Stevens.

Greenwald wrote July 7:


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.


A Politico analysis by Josh Gerstein similarly concluded:

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.”


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Related News Coverage

Elena KaganPolitico, Justice Elena Kagan: Overlooked turncoat on health care law? Josh Gerstein, July  7, 2012. 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.

Salon, Kagan’s Medicaid vote, Glenn Greenwald, July 7, 2012. The Obama Court appointee once again sides with the right-wing faction in an important ruling. 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.

Forbes, Justice Roberts and the Commerce Clause: Did He Open a New Path for an Activist Congress? Veta T. Richardson, the president and chief executive officer of the Association of Corporate Counsel, July 5, 2012.  In the days since the Supreme Court handed down its health care decision, at the end of June, people have started to focus on what the ruling means for other federal laws. Some commentators, on both sides of the political spectrum, suspect that the Supreme Court might use its reasoning to strike down a wide range of statutes that Congress has passed. I think that sort of thinking isn’t fair to Chief Justice John Roberts.  In fact, I think that the chief justice’s opinion might spell out what Congress needs to do to avoid problems in the future. Just read the language that the chief justice used. He wrote that the Constitution’s “power to regulate commerce presupposes the existence of commercial activity to be regulated.” He continues that “it is nearly impossible to avoid the word”—activity—”when quoting them.” And the President’s health care law? It can’t pass muster under that standard, because it would regulate “individuals precisely because they are doing nothing.”

Kagan Confirmation 2010 Background
OpEd News,


Newsmax, Justice Project: ‘No’ To Kagan, Andrew Kreig, June 29, 2010.


Catching Our Attention on other Justice, Media & Integrity Issues

New York Times, More Demands on Cell Carriers in Surveillance, Eric Lichtblau, July 8, 2012. In the first public accounting of its kind, cellphone carriers reported that they responded to a startling 1.3 million demands for subscriber information last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations. The cellphone carriers’ reports, which come in response to a Congressional inquiry, document an explosion in cellphone surveillance in the last five years, with the companies turning over records thousands of times a day in response to police emergencies, court orders, law enforcement subpoenas and other requests.

Don SiegelmanWBRC (Birmingham), Siegelman attorney files motion to set aside new trial denial, Staff report, July 9, 2012. The attorney for former Alabama governor Don Siegelman has filed a motion to set aside U.S. Judge Mark Fuller's denial of a new trial. The motion says the defense would like to seek more documents and information on U.S. Attorney Leura Canary. Canary recused herself from Siegelman's trial, but the defense says she was still involved to a degree. Judge Fuller had denied Siegelman's latest appeal on the grounds that it was almost identical to the appeal made by co-defendant Richard Scrushy.

Birmingham News / Al.com, Don Siegelman wants decision denying him a new trial set aside, needs time to pursue another appeal angle, Kim Chandler, July 9, 2012. A lawyer for former Gov. Don Siegelman has asked a federal judge to set aside his decision denying the former governor's request for a new trial. Siegelman's lawyer Peter Sissman filed the request, saying he wants time to appeal a discovery request seeking documents related to the recusal of former U.S. Attorney Leura Canary. Sissman has been focused on allegations that Canary, whose husband is involved in Republican politics, maintained some involvement in the prosecution of Siegelman, a  Democrat, despite her public recusal. U.S. District Judge Mark Fuller, who denied Siegelman's request for a new trial, has scheduled a resentencing hearing for Siegelman on Aug. 3. A magistrate judge on June 27 denied defense discovery requests. Sissman said he had 14 days to appeal that decision.

Legal Schnauzer, Oil, Money, Politics, and the Death of a Prominent Alabama Lawyer, Roger Shuler, July 9, 2012. According to the official finding, Alabama lawyer Major Bashinsky shot himself in the head and used duct tape and rope to create the appearance of murder. The Bashinsky family, at the time of Major's disappearance and death, had been embroiled in contentious litigation involving questions about the whereabouts of tens of millions of dollars. Our review of that lawsuit, which involved proceeds from investments in Oklahoma oil and gas wells, indicates the story behind Major Bashinsky's death might not be as clean and simple as officials want us to believe. Styled the Estate of Sloan Y. Bashinsky Sr., et al v. W&H Investments, et al, the lawsuit sought an accounting of at least $37 million Major Bashinsky's father had invested with a firm that has ties to gambling, Republican Party politics, and Alabama's toxic political environment.


Note: The Justice Integrity Project operates independently as a non-partisan legal reform and investigative reporting organization, and accepts no funding from defendants, their attorneys or supporters or from politically affiliated groups.