Should Liberals Be Mad at Kagan and Breyer?

While the Supreme Court's decision to uphold most of the Affordable Care Act in NFIB v. Sebelius was generally good news, the decision did have one unfortunate side effect. The Court limited the use of federal spending power with respect to Medicaid, permitting Congress to withhold new grants but not existing Medicaid funds from states if they failed to adopt Obamacare. In other words, governors can reject new federal funds to implement the health-care law without losing the rest of their Medicaid money.

Despite the consequences and dubious logic of this holding, however, it was joined by two of the Court's Democratic appointees: Clinton nominee Stephen Breyer and Obama nominee Elena Kagan. Given the escalating conservative outrage over Roberts's joining with the Court's more liberal faction on the other key elements of the case, several writers have wondered: Where's the liberal outrage against Breyer and Kagan?

"In contrast to all the weeping and wailing that has accompanied what appears to be John Roberts’ single significant defection since joining the court," writes Dahlia Lithwick, "liberals have been strangely silent—as they are always strangely silent—about the myriad ways in which the liberal justices have disappointed them this term." Glenn Greenwald sees this as more evidence that the choice of Kagan was misguided.

I think Greenwald is right that Kagan, while not a disaster, was a suboptimal choice. I also agree with the Lithwick that liberals generally place less pressure on Democratic presidents with regard to Supreme Court appointments, which over time creates a regrettable right-wing ratchet effect—Democratic presidents chose moderates while Republican presidents feel compelled to nominate party-line reactionaries. The fact that John Roberts will now be considered too liberal to have been an acceptable choice to many conservative will only exacerbate this effect.

But in the specific case of the Medicaid-expansion votes, however, I'm not outraged. Kagan and Breyer had good reasons for joining Roberts on the Medicaid-expansion issue, and the votes reveal nothing about their views on national power going forward.

There is, first of all, a perfectly good reason for the asymmetrical outrage directed at Roberts and Kagan/Breyer: Roberts was the swing vote. Had Roberts not sided with the Democratic appointees on the tax issue, the Affordable Care Act would have been struck down in its entirety. On the other hand, had Breyer and Kagan voted correctly on the merits of the Medicaid expansion, it wouldn't have mattered anyway: Roberts and the four dissenting justices would have limited the government's power in this respect with or without their votes. This is hardly a trivial distinction. It makes perfect sense to be more outraged over consequential votes than by inconsequential ones. Roberts's (apparently post-conference) switch to uphold the Affordable Care Act had an important effect on American history, and for that reason generated substantial positive and negative attention.

Moreover, as Lithwick and Greenwald note—but do not, in my judgment, sufficiently emphasize—there was a unique strategic element to this case that gave a powerful reason for Kagan and Breyer to join Roberts. Roberts's belated decision to uphold most of the ACA, first of all, probably compelled Kagan and Breyer to show some cross-ideological comity to encourage him to stay in the fold. Admittedly, we cannot know for certain what effect the strategic votes of Kagan and Breyer had on Roberts. (I hope that the Supreme Court leakers will find some time to tell us whether Breyer and Kagan changed their votes after conference.) Given that it's unlikely that there was explicit horse-trading involved, it may always be unknowable. But this is where the first point becomes crucial. Liberals had nothing to lose by joining Roberts on this one issue, so they had no reason not to try to cement his belated switch.

Permitting withholding on only new Medicaid money is a bad outcome compared with the original legislative framework, but it will still allow the Medicaid expansion to proceed in a majority of states, and ultimately—despite short-term resistance—all states are likely to accept the federal money. Had Roberts joined the four dissenters in holding the Medicaid expansion entirely unconstitutional, on the other hand, there would have been no expansion of Medicaid anywhere.

A final issue to consider is what this means in terms of evaluating Kagan going forward. The fact that Breyer and Kagan were not casting swing votes here does not mean that liberals have no reason to be concerned. I agree with Greenwald that, for example, Kagan's recent vote with the Court's conservative faction in a Miranda case is disturbing, even though it was not decisive. Because of the unique strategic context created by the most important federal powers case the Court has decided in nearly eight decades, however, I think it would be unwise to infer anything from this particular decision.

While Breyer has displayed squishy moderate tendencies throughout his tenure on the Court, he's never been squishy on federal power issues, where he's been the Court's most consistent advocate for deference to Congress and a robust vision of the federal power to regulate interstate commerce. Breyer's history strongly suggests that this NFIB vote was an anomaly that would not have been cast if it meant anything negative, and will not be repeated.

With Kagan, we have less of a track record, but while there are some reasons to think that she will have a Breyer-like tendency to defect on civil-liberties issues, I don't think that Obama's former solicitor general sincerely believed that the Medicaid expansion was unconstitutional—or that this would be reflected in future votes.

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