Watchdog Blog

Barry Sussman: Obamacare in the Roberts Court, and Journalism Lessons from Spain

Posted at 5:59 pm, June 23rd, 2012
Barry Sussman Mug

Any day now the Roberts court will release its Affordable Care Act ruling. It could be 5-4 against all or some of Obamacare, or as much as 6-3 in favor. Some people see Anthony Kennedy as the swing vote and that of course is possible. I’d look to Chief Justice John Roberts instead. I think he may have been torn in making his decision – but on politics, not points of law.

Roberts has never faced an issue of this sort. Always ruling on behalf of corporations and the Republican leadership, he hasn’t had to choose between the two because their positions have been one and the same, jointly formed. That may not be the case here. The Republicans opposed the Affordable Care Act long before it was written. They can’t let such an achievement by Obama stand. Clumsy and incomplete as it is, health care for almost all Americans is not a lesson they want the people to take from his presidency.

Many business leaders may not feel that way. Corporations could have something to gain if, gradually, health insurance is no longer linked to employee benefits – and that is a prospect under Obamacare. So what Roberts has had to weigh is a relentless demand for repeal by Republican chieftains but possibly a more restrained, mixed position held by corporate leaders.

I don’t know if it’s my own biases or Roberts’s behavior that makes me feel his decision will be based on his loyalties, with legal principle twisted to fit. I think it’s entirely him. He’s the one who at his confirmation hearings said how much he respected precedent but since then has, whenever he could, gone out of his way to upend it. He’s the one who wrote the opinion that corporations have the same First Amendment free-speech rights as people.

On a related matter, I noticed that the chief of the supreme court in Spain was forced to resign the other day in a scandal having to do with lying on expense accounts. He was turned in by a colleague. The other jurists, according to the New York Times, voted not to pursue the matter, citing a lack of evidence.

However, the Times article stated, “pressure on Chief Justice Dívar grew as the Spanish news media pursued their own inquiries into his expense claims over the past four years. Reporters unearthed as many as 32 long weekend trips, for which the chief justice claimed about $35,000 in business expenses, even though he had apparently spent that time in Marbella in southern Spain, and at other beach resorts.”

It’s time we had that kind of reporting in America. Justice Scalia has repeatedly flouted normal ethics, hunting with a certain vice president who was at the time the subject of a court case; speaking at fundraisers for Republicans, dining with prime challengers to Obamacare. Did he perhaps write these off as business trips? What about Justice Thomas’s failing to report his wife’s income, and his and her ties to a rich, money-gushing Texas right-winger? These have been in the press but not really followed up.

We no longer need Supreme Court reporters who only analyze legal principles and do occasional human interest stories; legal principle isn’t much of a factor in the majority’s 5-4 corporate-favoring opinions. The beat needs to be revised. It’s more a job for investigative reporters.

3 Responses to “Obamacare in the Roberts Court, and Journalism Lessons from Spain”

  1. Mike H says:

    You say that you “don’t know if it’s my own biases or Roberts’s behavior that makes me feel his decision will be based on his loyalties, with legal principle twisted to fit” citing allegations of conflicts of interest in some SCOTUS judges but conveniently neglect the conflicts of interest of other justices: Ruth Bader Ginsburg’s association with the National Organization for Women Legal Defense Fund for example.

    I think we know what biases drive your opinion.

  2. Kevin says:


    You write about Justice Thomas and Roberts, but the one with the most conflict of interest is Kagan, who worked for the “Obama administration” on this matter and should have recused herself.

    Oh, and do not forget, Obamacare is null and void because Obama is not legally the President. No Court has dared to have a trial of this issue on the merits, due to fear of confirming the obvious, that he is not a US born citizen and have made up bogus excuses instead.

    All of Obama’s laws are null and void, as a matter of law. No court has authority to declare them valid, as they have never ever been signed by a real President to become statutes in the first place.

  3. pelet says:

    As Kevin rightly sees, liberal justices are liberal so they act upon their ideology. The same however applies to conservative justices, who are also influenced by their doctrine. So to sum up SCOTUS is just as partisan as everything in US politics and I must say I’m somehow surprised with ruling of justice Roberts broke party lines – actually the reaction of media, pundits and commenters just proves that everyone expects justices of SCOTUS to act upon their ideologically what proves partisanship of this institution.

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