Outcome of health care case could hinge on 2004 election

Karen Bleier/AFP/Getty Images
US Senator John Kerry (forward, far right) descends the steps of the Supreme Court Tuesday after listening to oral arguments over the fate of President Obama’s universal health care law.

One of the classic closing arguments in any presidential campaign - which candidates always cast as “the most important of our lifetime” - is that the outcome could dictate the balance of power on the US Supreme Court.

As arbiter of the nation’s most contentious legal disputes, and as interpreters of that living document known as the Constitution, the court plays a critical role in US governance.

Citizens are getting a reminder right now.


For perhaps the first time since the Bush v. Gore case in 2000, the populace is paying realtime attention to the court as it hears oral arguments in the legal challenge to President Obama’s health care overhaul. A decision is expected about June.

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Some 26 states argue that forcing their citizens to buy health insurance violates the Constitution’s Commerce clause. The Obama administration argues that requiring people who buy insurance to provide coverage to people who can afford it - but don’t buy it - is the definition of Commerce and thus the Affordable Care Act is legal.

The focus on court observers Tuesday was Justice Anthony Kennedy, a conservative who often votes with the majority and seemed to doubt the constitutionality of the so-called health care mandate.

He was nominated by President Reagan and seated on the court in February 1988, part of its current 5-4 conservative majority.

But that majority is led by Chief Justice John Roberts, who was nominated by President George W. Bush and seated in September 2005. It was bolstered by the addition of Justice Samuel Alito, who also was nominated by Bush and seated in January 2006.


(Rounding it out are Justice Antonin Scalia, a Reagan appointee from 1986, and Justice Clarence Thomas, a 1991 nominee of President George H.W. Bush.)

In 2004, Senator John Kerry was among those presidential candidates who made the Supreme Court’s balance a part of his closing campaign argument. Then-incumbent President George W. Bush did, too.

History shows that Kerry still ended up losing the race to Bush, and that Bush ended up making his only two court nominations after his reelection victory.

In early 2005, he replaced Chief Justice William Rehnquist - who died in office - with a then-50-year-old Roberts, assuring a conservative would continue to oversee the court’s deliberations for decades.

And later that same year, Bush had the opportunity to replace a swing voter, Justice Sandra Day O’Connor, with Alito (Roberts had initially been tapped for that vacancy but, after Rehnquist died, Bush re-nominated him for chief justice).


While history cannot say that Kerry would have pursued universal health care in the same manner as Obama, history can show he would have gotten at least one of the two Supreme Court appointments made by Bush had the senator won the 2004 election.

On Tuesday, as a conservative instead of liberal court weighed the constitutionality of the Affordable Care Act, Kerry sat in the Supreme Court’s chamber, hanging on the oral arguments, instead of back at the White House as a second-term president, feeling confidence in the outcome of the debate.

In 2004, at least, the outcome of an important future debate may, in fact, have hinged on the results of a presidential election.

Glen Johnson can be reached at johnson@globe.com. Follow him on Twitter @globeglen.