Jules Witcover

WASHINGTON — Despite tenacious Republican efforts to kill the nation’s popular public health care law, the Supreme Court has again thrown it a life preserver, in a 7-2 decision that contradicts its current-day reputation as a bastion of conservatism.

The Affordable Care Act, widely known as Obamacare after the president who backed it, won surprising support from several implacably right-wing members of the highest court, including Associate Justices Clarence Thomas and Amy Comey Barrett, both Republican appointees.

The verdict turned out to be a feather in the cap of President Joe Biden, though not of his making. As a former U.S. senator and vice president, he was among the law’s most avid defenders against longtime GOP efforts to abolish it.

The most dramatic attempt to bury Obamacare came in 2017 in the Senate, when then Republican Sen. John McCain of Arizona left his sickbed and took a late-night cross-country flight to Washington, and cast the deciding vote that saved the law. He did so by flashing a thumbs-down vote to the Senate clerk tabulating the roll call on its fate.

This time around, Obamacare was salvaged by a wide majority that accepted the argument that the law was not rendered unconstitutional by Congress’ removal of the key requirement to purchase health-care coverage. Associate Justice Stephen Breyer, a Democratic presidential appointee, wrote: “With the penalty (requiring purchase of the insurance) zeroed out, the IRS can no longer seek a penalty from those who who fail to comply.”

Furthermore, he wrote, petitioning states “have not demonstrated that an unenforceable mandate will cause their residents to enroll in valuable benefits programs that they would otherwise forgo.”

Justice Thomas, in explaining his vote, took pains to make clear he was not suddenly supporting Obamacare. He indicated he was only recognizing that the petitioners had failed to show how they were harmed by the law, and thus they lacked legal standing to bring the suit to void it. Thus the case in question did not make the usual conservative argument against Obamacare as another “socialist” vehicle imposed by Democrats on the American public.

Thomas, in a rare open discussion in a case before the highest court, wrote: “This Court has gone to great lengths to rescue the Act from its own text.” He said this latest outcome was “not the consequence of the Court once again rescuing the Act, but rather of us adjudicating the particular claims the plaintiffs chose to bring.”

The other jurists who joined in the lopsided vote keeping Obamacare alive included Chief Justice John Roberts and Brett Kavanaugh, Republican appointees, as well as Democratic appointees Sonia Sotomayor and Elena Kagan. Two other Republican nominees, Samuel Alito and Neil Gorsuch, dissented.

The latest vote keeping Obamacare on the books does not, however, rule out further Republican efforts to “repeal and replace” it as a prime party objective over the last decade. For the time being, Obama said, “This ruling affirms what we have long known to be true: the Affordable Care Act is here to stay.” Biden agreed, repeating in a sanitized version his original recorded endorsement of it at the time as a “big f—— deal.”

Jules Witcover’s latest book is “The American Vice Presidency: From Irrelevance to Power,” published by Smithsonian Books. You can respond to this column at juleswitcovercomcast.net.

Newsletter