The Senate Judiciary committee begins its pro forma hearings this week in the confirmation process of Donald Trump’s nomination of Brett Kavanaugh to the Supreme Court. After Kavanaugh joins the court there will be a solid conservative majority. For at least the next ten to twenty years we can expect a new direction for the court. This should be no surprise for any of us because capturing control of the Supreme Court has been the real objective of Republican strategists for many years. As The New York Times writes, Chief Justice Roberts now becomes the “swing” vote.  Roberts is no Anthony Kennedy and certainly no Earl Warren, so we can expect that we will see a flood of cases that will test aspects of the ACA, a woman’s right to an abortion, and further reversal of decisions that regulate business and protect the environment. As the Times article says:
It has been more than 80 years since a chief justice was the swing vote. If Chief Justice Roberts assumes that position, legal scholars said, he will lead a solid five-member conservative majority that would most likely restrict access to abortion, limit the use of race-conscious decisions in areas like college admissions, uphold voting restrictions, expand gun rights, strike down campaign finance regulations and give religion a greater role in public life.
“John Roberts would be the least swinging swing justice in the post-World War II era,” said Justin Driver, a law professor at the University of Chicago.
If that possibility concerns you, I guess we can pray for a transformation like the ones Justices Warren and Sutter experienced. Both were appointed by conservative presidents and were expected to be conservative jurists but then were noteworthy liberals. What they both shared in common was that there was not much in the way of a “paper trail” of cases to really demonstrate their judicial stance. Warren had been the governor of California and an attorney general but never a judge.  Souter had been on the New Hampshire Supreme Court for a while but had not rendered any significant decisions which is probably why George H.W. Bush chose him in 1990 after Ronald Reagan was burned by the failed nomination of Judge Robert Bork. Given the solid liberal voting pattern of Justice Souter during his years on the Supreme Court it is ironic that both Ted Kennedy and John Kerry voted against their New Hampshire neighbor.  Both Warren and Souter joined the court with most people expecting that they would be conservative votes and in fact once on the court to everyone’s surprise they delivered opinions that helped transform America to a new level of opportunity and fairness.  Some of those decisions, even going back to the Warren court of the fifties and sixties, are just the ones that Mitch McConnell and those for whom he has plotted a successful strategy hope to see reversed once Judge Kavanaugh joins the court.
I doubt Kavanaugh will be a Warren or a Souter. Unlike them Kavanaugh has a lengthy dossier of legal opinions and writings as a member of the Bush II administration and a dozen years as an Appeals Court Judge. Kavanaugh has written so much that may be controversial that the request by Democrats on the Senate Judiciary Committee that all of his prior work be submitted for their review has resulted in over 100,000 pages of his work from his years in the Bush administration being withheld. Estimates of the total number of pages exceed 500,000 pages. That is a lot of information to review.Â
Chuck Schumer is understandably unhappy. The CNN article from the link above quotes him:
“President Trump’s decision to step in at the last moment and hide 100,000 pages of Judge Kavanaugh’s records from the American public is not only unprecedented in the history of Supreme Court nominations, it has all the makings of a cover up,”
I am sure that Senator Schumer was expecting something of the sort. He is not a political neophyte. Schumer knows that he does not hold cards that would allow him to block the confirmation until after the midterm election in November. Timing the confirmation vote to occur just before November is exactly what Mitch McConnell is try to do. It is reported that it is McConnell’s hope that Kavanaugh’s confirmation just before the election will demoralize many Democrats and they may stay away from the polls. Who knows what is in the heart of another man? What seems true though is that McConnell holds the cards that will give him what he wants and the new court will further challenge the future of the Triple Aim.
Chuck Schumer and the other Senate Democrats released a document in July that outlined their concerns for healthcare if Judge Kavanaugh is confirmed. It’s not a long document and you should read it. As the ACA has stumbled along under increasing administrative harassment since John McCain turned his thumb down on attempts at its repeal, it has become clear that if it can’t be abolished (repealed and replaced) through legislation, it is vulnerable to further legal assault through the courts.
One thing that has been increasingly obvious to me is that one of the greatest accomplishments of the ACA is to guarantee anyone’s insurability no matter what their medical history may be. Many voters who do not understand all that the ACA has to offer still see it as a piece of social legislation that benefits deadbeats and welfare recipients at the expense of those in the middle class who do not qualify for support and small employers who are threatened by business failure because of the added healthcare expenses that they are forced to bare. I fear that most voters do not understand just how important it is to everyone who is not independently wealthy to be assured that they can always get healthcare coverage. What few people realize is that since the mandate has been removed there is a plausible case against the ACA’s prohibition against the abolition of coverage denial for reasons of a preexisting condition. That case is winding its way through the lower courts now and no matter how the November elections go it will be waiting soon for Judge Kavanaugh and the conservative majority on the Supreme Court to take a big bite out of the ACA. The Washington Post sums up the situation with a pretty devastating statement:
In the long run, Kavanaugh could shape jurisprudence for decades on abortion, gay rights, voting rights, money in politics, guns, presidential authority and more. But his most immediate impact could be on health care.
Last Saturday my wife noticed that “Saturday Night Live” was rebroadcasting the 2002 show that was hosted by John McCain. It was weird to watch it. The actors that are still around have definitely aged. As I was watching, I could not help but think back over all that has happened in the interim. We have discovered that there were no weapons of mass destruction, but Saddam Hussein is still gone, as are Colonel Gaddafi and Osama Bin Laden, yet we are still fighting on in the Middle East down trillions of dollars of resources, thousands of lost American lives, and many more thousand who suffer on with their physical and emotional wounds which will likely shape the rest of their lives. I remembered attending a peace vigil with my family the Sunday night before Bush launched the invasion of Iraq. Our candles burned brightly and accomplished nothing.
I also thought about Crossing the Quality Chasm, published in 2001. By 2002 I was vaguely aware that high quality healthcare should be safe, patient centric, efficient, effective, timely and equitable. It would still be three years until I took the challenge of crossing the quality chasm in my own organization seriously. In 2002 it would still be almost four years before “Romneycare” would be passed in Massachusetts. It would be over six years until McCain would lose his second bid for the presidency to someone that no one outside of Illinois had ever heard of in 2002, and eight years before many of the insights of Crossing the Quality Chasm would be written into law as the ACA. My first grandchild was born in 2002. Now she is an amazing young woman who is a leader and an excellent student athlete who sometimes says that she wants to be a doctor. We were making healthcare so much better before the wheels came off in 2016. Ironically things would be much worse if 15 years later John McCain had not turned his thumb down on a terrible bill. That was a surprise relief. As I fell asleep before “SNL” ended, I was praying that another miracle would occur and healthcare would be spared the reversals that seem to be certain as Brett Kavanaugh joins the Supreme Court.
I took the picture of the Supreme Court building during a trip to Washington eight years ago. It seemed like a good introduction to this posting. I was there with Marci Sindell who was our chief of external relations, marketing, and government affairs. She was also one of our most forward looking strategic thinkers and is still the Chief Strategy Officer of Atrius Health. We were there to visit with several legislators with the hope of correcting a piece of legislation that we felt was unfair to our organization. Everybody that we saw agreed that we had been trapped by an unintended consequence that would cost us several million dollars of revenue a year, and they were sorry, but nothing could be done. We just needed to “grin and bare it.” I think the picture is particularly appropriate for this moment because the beautiful building where so many people have gathered on the steps to await the proclamation of important verdicts looks a little dull under overcast skies that contain areas of foreboding areas of blackness. I will continue to hope that news reporters will never stand on those steps waiting to hear the results of another challenge to the ACA, but I must admit that the realist in me can only see black clouds over the Supreme Court for many years to come. The confirmation of Brett Kavanaugh will be another and perhaps more lasting challenge for those of us who care about the Triple Aim than was the election of Donald Trump. The two events cannot be separated. Both are a challenge to those of us who have seen the court as a principle instrument with great stability, in concert with the more fluid realities of Congress and the Presidency in the work of shaping the eighteenth century ideas of liberal democracy into a greater future fo everyone who lives in twenty first century America.
