Rule of Law

Justice Elena Kagan: Overlooked turncoat on health care law?

By Josh Gerstein

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.


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.”


Conservative groups like Judicial Watch and the Media Research Council, along with some Republican lawmakers, pressed Kagan to recuse herself. They noted her exchanges of emails about the law with colleagues, and they suspected she was involved in administration discussions about legal strategy to respond to the case. Administration officials insisted she avoided all substantive discussions about the Justice Department’s efforts to plan a defense of the law.


The basic concern on the part of those calling for Kagan’s recusal seemed to be that she would effectively rubber-stamp the Obama health care law.


“I think the reason she was appointed was to provide votes like this on ‘Obamacare,’” Judicial Watch president Tom Fitton said Tuesday.


However, Kagan proved not to be a rubber stamp when it came to the Medicaid expansion provision, joining in a 7-2 ruling that it was unconstitutional.


“It’s pretty conclusive proof to critics who said she couldn’t put her biases aside that she was doing precisely that, approaching this case the way you’d want a justice to approach it,” said Doug Kendall of the Constitutional Accountability Center, a liberal legal organization that filed a brief urging the justices to leave the Medicaid expansion undisturbed.


Of course, there are several ways to distinguish Kagan’s heresy from Roberts’s. Whether any of them are persuasive, or at least mitigating, is in the eye of the beholder.


First, Kagan didn’t vote to knock down the expansion completely, since she said the legislation could be saved by interpreting it to make the state’s participation more voluntary. She voted for an opinion that said the federal government could not threaten to take away all Medicaid funding from states that don’t want to join the expansion, but the feds can make increased Medicaid funding contingent on new rules.


Second, Justice Stephen Breyer cast the same vote as Kagan did.


“It wasn’t just her, it was Breyer as well” who joined Roberts to form the middle ground on Medicaid, said Kevin Walsh, a law professor at the University of Richmond and a former law clerk to Justice Antonin Scalia. “To me, it’s sort of indicative of a pragmatic streak.”


While Breyer did take the same stance as Kagan, his apostasy may strike some as less jarring because he hadn’t served in the Obama administration as it worked to craft the law. He also didn’t move directly from the ranks of Democratic executive branch political appointees to the high court. (He made the journey to the court from the 1st Circuit in 1994 under President Bill Clinton. Breyer did serve in the Justice Department under President Lyndon Johnson.) Nor, to my knowledge, had anyone protested Breyer hearing the case.


So, his straying from the Obama administration’s line is less surprising.


Third, Kagan wasn’t the swing vote on the Medicaid expansion, so her stance didn’t appear to control in the same way Roberts’s decision to side with the liberal justices on the individual mandate saved that part of the law. The vote to hold the expansion unconstitutional as written was 7-2, so her vote alone couldn’t have dictated the result. Except that it might have.


The result on Medicaid was actually driven by five justices, since four (Anthony Kennedy, Scalia, Samuel Alito and Clarence Thomas) would have struck down the entire statute and declined to modify the Medicaid requirement by reinterpreting it (or in the eyes of critics, rewriting it).


Five justices saw the Medicaid expansion as either constitutional as written (Ruth Bader Ginsburg and Sonia Sotomayor) or salvageable by making it voluntary on the part of the states (Kagan, Roberts and Breyer).


Lawyers who track the court closely say it’s unclear exactly what the outcome would have been if Kagan had voted with Ginsburg and Sotomayor. It’s possible those three might have been able to drive the result, rendering the Medicaid part of the law entirely constitutional. However, if Roberts (or Breyer) was unwilling to endorse such a result, he could have crossed over and voted with the dissenters to make a five-vote majority to strike down the expansion entirely and maybe even the whole law.


Under Supreme Court doctrine, it’s possible a Breyer-Roberts concurring opinion for upholding the expansion could emerge as controlling precedent for the future, but courtwatchers said it’s unclear whether their holding could have dictated the outcome of this case.


Fourth, and related to the above, Kagan’s vote may have been a strategic concession to save the whole law and/or the Medicaid expansion, rather than see it all struck down. Very possible, though I doubt she’d admit it at the moment.


Some liberals and conservatives believe Kagan signed onto the Roberts-Breyer Medicaid position to avoid a defection by Roberts (or, less likely, Breyer) that could have struck down the Medicaid expansion entirely. It’s even possible Kagan explicitly or implicitly encouraged the crafting of a middle-ground position on the Medicaid issue in order to encourage Roberts to stick to his position that the individual mandate could be saved as a tax measure.


“That was kind of a compromise that saved ‘Obamacare,’” Fitton said of Kagan’s vote on Medicaid. “One easily could have found that you could not craft a legislative remedy from the bench. …They could have thrown out all of Obamacare.”


“That would be quite a horse trade if Kagan and Roberts did that secretly,” said Outterson, when asked what he thought of the theory. He also said he had “no basis” for assuming something like that went on.


Fifth, Kagan’s vote might end up having no practical consequence.


A former Obama administration official involved in crafting the law, Neera Tanden, said Kagan’s vote on the Medicaid ruling likely reflects a conclusion that the consequences for the health care reform program would be limited or maybe even nonexistent.


While Republican governors are threatening to take the court up on its offer to allow them to bail out of the expansion, some policy experts suspect that after the November election, if Obama wins, most or all of the governors will sign on rather than sacrifice federal spending that will be flowing to states around them.


“It reflects a judgment that states will take up Medicaid regardless of what they posture about now,” said Tanden, now president of the Center for American Progress.


But the impact on Medicaid is not the only consequence of last week’s 7-2 ruling holding the expansion unduly coercive toward states. There could be major implications for conditions the federal government puts on highway and education funds, as my colleagues Lester Feder and Darren Samuelsohn reported earlier this week. (Another headscratching aspect of the Medicaid ruling: Kagan and Breyer may have placed themselves to the right of Iowa GOP Sen. Chuck Grassley.)


“I think there’s significant potential for this coercion doctrine to be litigated in numerous cases going forward. … The more powerful thing I think [conservatives] got is on the Medicaid side. Every program of the Great Society, now you at least have to filter it through the coercion doctrine,” Outterson said.


In the end, the verdict on Kagan may be much like that on Roberts: either a turncoat or a strategic genius, depending on your perspective.