Is Stephen Breyer Headed Off Into the Sunset?
The Supreme Court, in a 7-2 decision, upheld the constitutionality of the Affordable Care Act. Technically, they side-stepped the question by finding that the plaintiffs did not have standing to sue, but the effect is the same. The law will remain on the books and 21 million Americans who might have lost their health care coverage overnight can now go to bed secure in their minds. The case, California v. Texas, rode to the countrys top court through a district court in Texas and the very conservative United States Court of Appeals for the Fifth Circuit. But it ran into a buzzsaw once it reached Washington DC. Only Justices Samuel Alito and Neil Gorsuch dissented from the ruling, meaning that Trump appointees Brett Kavanaugh and Amy Coney Barrett voted to protect Obamacare. Perhaps most surprisingly, even Clarence Thomas sided with the majority, although he did write a concurring opinion indicating that he didnt fully agree with the majoritys reasoning. In 2012 Chief Justice Roberts ruled that Congress has the right to impose a mandate to buy insurance because they are authorized to levy taxes. But in 2017, Congress eliminated the mandate. The plaintiffs maintained that this rendered the entire law unconstitutional since it no longer includes a tax. If that reasoning sounds a little strained, thats because the logic doesnt quite fit. But it was good enough for conservative lower courts and it might have worked at the Supreme Court too if the plaintiffs could have shown how they were injured by others getting health insurance. The opinion was written by Justice Stephen Breyer whose retirement is the subject of much speculation. Since Chief Justice Roberts was in the majority, he got to assign the author of the opinion. Senate Minority Leader Mitch McConnell said this week that it is highly unlikely that hed confirm a Biden replacement for Breyer if he returns to Majority Leader after the 2022 midterms. In an interview with conservative radio show host Hugh Hewitt, McConnell was asked if he would give a Biden Supreme Court nominee a fair shot at a hearing if the person is not a radical, but a normal mainstream mainstream liberal if he became majority leader again. Well, wed have to wait and see what happens, McConnell said about the possibility of a 2023 Supreme Court confirmation hearing, the third year of Bidens presidency. Asked if he would fill a Supreme Court vacancy in 2024 with a Biden nominee, McConnell suggested he would follow the rule he used in 2016 when he blocked then-President Barack Obamas high court nominee, Merrick Garland, after Justice Antonin Scalias death because it was an election year. I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled. So I think its highly unlikely, McConnell said Monday about the possibility of confirming a Biden nominee in 2024. This obviously should focus Justice Breyers mind about the potential cost of staying on the bench next year. Publicly, at least, Breyer has been adamant that political considerations should not play a part in when Justices retire, but I presume hes not a total idiot. He knows that a Biden nominee will be more aligned with his views than a Republican nominee, and he undoubtedly cares about the ideological makeup of the Court. Its possible that hes already made a decision to retire and Roberts is aware of his decision and assigned him the California v. Texas opinion out of respect. I hope thats what were seeing here, because I dont want another fiasco like we saw after Antonin Scalia and Ruth Bader Ginsburg died.