The Supreme Court’s latest ruling underscores the growing influence of Roberts, Kavanaugh and Barrett

The Supreme Court’s latest ruling underscores the growing influence of Roberts, Kavanaugh and Barrett
Brett Kavanaugh image via Screengrab
Joe Biden is being cagey on expanding the Court. Is that the right play?

In 2021, the United States has its most right-wing Supreme Court in generations — and liberal and progressive legal voices have expressed fears that everything from Roe v. Wade to Griswold v. Connecticut to Lawrence v. Texas could be on the chopping block. Yet on Thursday, June 17, the U.S. Supreme Court saved the Affordable Care of 2010, a.k.a. Obamacare, for the third time when it handed down its decision in Texas v. California and threw out a Republican lawsuit that wanted to strike the law down. CNN legal analyst Joan Biskupic examines that decision in an article published on June 18, arguing that Texas v. California underscores the influence that Justice Amy Coney Barrett, Justice Brett Kavanaugh and Chief Justice John Roberts have on the High Court.

Texas v. California was 7-2 ruling, with Justice Neil Gorsuch and Justice Samuel Alito being the only dissenters. Barrett, Kavanaugh, Roberts and even Justice Clarence Thomas concurred with 1994 Bill Clinton appointee Justice Stephen Breyer, agreeing that the GOP lawsuit in the case had no merit. In Texas v. California, Texas Attorney General Ken Paxton, joined by Republican attorneys general in many other states, argued that because the "individual mandate" had been removed from Obamacare, the entire law had to be struck down — an argument so absurd that even some of the ACA's most outspoken critics on the right slammed the lawsuit as an embarrassment. And obviously, most of the right-wingers on the Supreme Court agreed.

Biskupic explains, "Chief Justice John Roberts, along with Justices Amy Coney Barrett and Brett Kavanaugh, demonstrated their collective power at America's highest court on Thursday…. They fueled the Supreme Court's limited opinions on Obamacare and religious liberty."

Biskupic's article for CNN's website, however, isn't so much about the elements of Texas v. California and the future of Obamacare as it is about the influence that Barrett, Kavanaugh and Roberts have on the High Court in 2021.

The CNN legal analyst explains, "An overriding question going into the session that began last October was whether Roberts would still wield significant control, after former President Donald Trump appointed Barrett to succeed the late liberal Justice Ruth Bader Ginsburg and created a 6-3 conservative-liberal bench. But the latest developments suggest a possible 3-3-3 pattern, with Roberts, Barrett and Kavanaugh at the center-right, putting a check on their more conservative brethren who regularly push to overturn precedent. The trio were part of majorities that rejected yet another challenge to the 2010 Affordable Care Act and took only a small step — over complaints from other conservatives — in favor of…. religious entities that would discriminate against LGBTQ individuals."

The "religious entities" case that Biskupic is referring to is Fulton v. Philadelphia. In that decision, also handed down on June 17, the Supreme Court ruled that the City of Philadelphia violated the 1st Amendment to the U.S. Constitution when it froze the contract of a Catholic foster care agency because that agency refused to consider same-sex couples as possible foster parents.

Biskupic observes, "Justices Samuel Alito, Clarence Thomas and Neil Gorsuch, on Thursday in the Philadelphia case, argued for reconsideration of a 1990 Supreme Court case so that religious believers might more readily win exemptions from anti-discrimination mandates and other government regulations. The remaining three liberals are Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. They fully joined the Roberts opinion in the Philadelphia conflict between free-exercise rights and LGBTQ interests."

Some right-wing Supreme Court justices have turned out to be quite nuanced; the retired libertarian/conservative Justice Anthony Kennedy, a Ronald Reagan appointee, was fiscally conservative but often voted with the late liberal Justice Ruth Bader Ginsburg when it came to abortion and gay rights. And Biskupic points out that Roberts has expressed his worries about the High Court being perceived as overly politicized.

Biskupic writes, "Roberts had argued, in public speeches, that the justices' political alignments do not necessarily dictate how they would rule. Perhaps proving that, he at times joined the Democratic-appointed liberals in decisions — most sensationally in 2012, when the Court first upheld the Affordable Care Act by a 5-4 vote…. Thursday's ACA case was a stroke of greater moderation and cross-ideological unity."

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