Dissenting Opinion Analysis: Justice Kennedy Abandons All Pretensions Of Being A Moderate

Yesterday was a day for celebration because when millions of Americans learn that their lives are no longer endangered by a renegade Supreme Court, everything else is details. Nevertheless, it is important to be aware of just how close the country came to the brink of disaster yesterday. Four justices, including so-called moderate conservative Anthony Kennedy, joined a dissent that did not simply toss out two-hundred years of established law, it also called for the entire law to be repealed.

This too was a massive departure from longstanding law. A court may not invalidate any constitutional part of a law unless it is “evident” that Congress would have preferred that part to fall along with the parts the court just invalidated, yet Kennedy and his three co-ideologues would simply cast that rule aside in order to achieve the Republican Party’s number one policy goal.

And the Kennedy Four do not stop there. As part of a lengthy conclusion warning that enabling democratically elected lawmakers to actual govern places “liberty at peril,” the dissenters write what may be the least self-aware paragraph ever composed by a Supreme Court justice:

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

Caution and minimalism are indeed important values for a judge to possess. But tossing out an entire landmark statute because you object to a few lines is the opposite of minimalism, and taking such a maximalist approach without even pausing to consider the consequences is the opposite of caution.


Had just one more justice joined the Kennedy Four’s opinion, Medicare would have likely shut down. Approximately 100 million Medicare claims are processed each month using a formula that was altered by the Affordable Care Act. If the entire law were tossed, new rates could not be calculated under the old, pre-ACA formula until after a rulemaking process that can take months to complete. The result would be that Medicare would not be able to pay doctors for what could be many months, and because Medicare’s computers are not equipped to handle this kind of backlog, Medicare’s systems would likely crash.

This, by the way, is just one of the many consequences that would have likely occurred immediately if Justice Kennedy had prevailed yesterday. Four justices — almost a majority of the Supreme Court — announced yesterday that they would happily blow up our entire health care system simply to lash out at President Obama’s signature accomplishment, forcing millions of Americans to face uncertainty, financial ruin or potentially even death after they suddenly lose their ability to access affordable health care.

Nor is this kind of behavior out of character for Justice Kennedy. Kennedy was the driving force behind Citizens United, even after Roberts initially advocated a less radical approach. Kennedy is a zealous supporter of forced arbitration decisions enabling corporations to force people into a corporate-run court system. He cast the key vote against Lilly Ledbetter and against equal pay for women in the workplace. And, of course, he voted to install George W. Bush as president.

To be clear, Kennedy is not Clarence Thomas. He proved that in Monday’s immigration decision. But the health care dissent shows he is no less willing to take America to the edge of an abyss than the Court’s most radical members. If five colleagues had not been their to stop him, he would have pushed us in.