Judge Amy Coney Barrett


Erin Schaff/Zuma Press

‘The American people should make no mistake—a vote by any Senator for Judge Amy Coney


is a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions.” So declared Democratic Senator

Chuck Schumer

last fall.

Democrats knew ObamaCare was in no mortal danger. As it turned out, Justice Barrett joined the Court’s 7-2 majority on Thursday upholding the law. One lesson for Americans—besides never underestimate Democratic cynicism—is that conservative Justices don’t vote based on their policy preferences.

Texas and 17 other states along with two individual plaintiffs in California v. Texas challenged the constitutionality of the Affordable Care Act after Congress zeroed out the penalty for not carrying health insurance in the 2017 tax reform. Chief Justice

John Roberts

saved the law in 2012 (NFIB v. Sebelius) by dubiously declaring the individual mandate a tax.

States and individual plaintiffs sought to hoist the Chief on his own logic by arguing that the penalty set at zero is no longer a tax. And since the mandate was essential to the law, they argued, ObamaCare must fall. We warned the plaintiffs that they were likely to lose. And sure enough, the majority declined even to reach the merits and held instead that the plaintiffs lacked Article III standing.

Under the Court’s precedents, plaintiffs must suffer an “injury in fact” that is “fairly traceable” to the “allegedly unlawful conduct” of which they complain. Neither the individuals nor the states could show they’d be harmed by the zeroed-out penalty. “To find standing here to attack an unenforceable statutory provision would allow a federal court to issue what would amount to ‘an advisory opinion without the possibility of any judicial relief,’” Justice

Stephen Breyer

writes for the majority.

But as Justices

Samuel Alito


Neil Gorsuch

point out in dissent, the Court has been “selectively generous in allowing States to sue,” which is putting it mildly. For instance, the Court granted standing to Democratic states challenging a citizenship question on the Census. The states weren’t directly injured by the question, but speculated they might be.

Justices Alito and Gorsuch argue that Texas and friends have standing because other ACA provisions burden them and are inextricably linked to the individual mandate. They say the Court is again pulling off “an improbable rescue” of the ACA. There’s no doubt the majority has rescued the Chief from wrangling with his faulty reasoning in NFIB.


Clarence Thomas

was persuaded by the dissent’s logic up to a point, noting its theory of standing “has some support in history and our case law.” But the majority’s ruling is defensible, he says, because the case law isn’t detailed. Such debates over jurisprudence can seem esoteric, but they show how Justices are deeply engaged in legal philosophical questions.

As another case in point, consider the Court’s 8-1 ruling Thursday in


v. Doe. The 1789 Alien Tort Statute (ATS) allows federal courts to hear certain civil actions filed by foreign citizens. Plaintiffs sued chocolate makers for “abetting” human-rights abuses in the Ivory Coast by buying cocoa beans from plantations that allegedly used child labor.

The Court ruled that Nestle and Cargill could not be sued under the ATS for extraterritorial torts. Justices Thomas, Gorsuch and

Brett Kavanaugh

opine separately that the ATS doesn’t allow courts to create a private right of action. The three liberals disagreed on this point, and the Chief and Justice Barrett didn’t lay down a marker.

Justice Alito dissented on grounds that the Court didn’t decide the primary question presented to it—whether corporations are immune from liability under the law. He said no and chided his fellow conservatives for ducking this question. What was that,

Sen. Sheldon Whitehouse,

about conservative Justices being in the pocket of big corporations?

Progressives treat the High Court as merely another policy-making body and Justices as politicians. They claimed Justice Barrett’s confirmation would result in a parade of victories for the political right. But the conservatives are showing a diversity of legal views that are neither in lockstep nor radical.

Wonder Land (10/13/20): Senator Dianne Feinstein was onto something worth talking about when she said, ‘The dogma lives loudly within you.’ Image: Tom Williams-Pool/Getty Images

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Appeared in the June 18, 2021, print edition.

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