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Anthony Kennedy and the Affordable Care Act

When the Affordable Care Act narrowly survived a Supreme Court challenge this summer, pundits focused on what the 5-4 decision might reveal about the Court’s shifting political balance. But as the President who brought us both the individual mandate and the disposition matrix fights for a second term, the Supreme Court’s decision looks less like a crystal ball than a cracked mirror, reflecting the contradictions of twentieth-century liberalism that twenty-first century politics struggle blindly to resolve.

One of the most remarked-upon aspects of the ACA decision was Justice Anthony Kennedy’s apparent betrayal of his moderate judicial temper. During the past two decades of conservative Supreme Court dominance, Kennedy has won liberals’ grudging appreciation for the swing votes he provides in close cases involving individual liberties. Yet in the case of the Affordable Care Act, Kennedy joined the Court’s three most conservative justices to argue that compelling people to buy health insurance is a grievous threat to individual freedom. The dissenters’ argument traded on how little distance separates government coercion of the individual from democratic control of the economy, reframing economic regulation as the paradigmatic violation of civil liberty. While Chief Justice John Roberts refused to join his conservative colleagues’ repudiation of the ACA, his majority opinion made clear that he shares the Kennedy faction’s view that government is first and foremost a threat to freedom.

Although the Court’s five conservatives are engaged in a revolutionary reconstruction of American law, the plausibility of their negative concept of liberty is as much the product of liberal ambivalence as conservative insurgency. Over the past sixty years, liberals have become increasingly reluctant to defend a positive account of liberty rooted in social and economic equality and realized through strong, centralized government. One reason for this surrender is that the substance of liberal political economy has changed, as skepticism about state planning functions as a bipartisan shibboleth. But even among those who unambiguously support redistribution and regulation at the federal level, there is another obstacle to the pursuit of positive liberty through public power: the specter of violence that haunts progressive governance.

The same twentieth century that brought major advances in social and economic rights also brought the militarization of the American state. Those administrations that best exemplify the redistributive potential of public power — Wilson’s New Freedom, Roosevelt’s New Deal, Truman’s Fair Deal, Johnson’s Great Society — also pioneered our nation’s grand experiments with public violence, from mass military mobilization to mass surveillance to nuclear war. In keeping with this historical tendency, the Obama administration has both passed national healthcare reform and celebrated the automated assassination of American citizens.

Legal liberals have long sought to temper state-authorized violence. During the last century, they opposed the deportation and denaturalization of dissidents, fought for the safety and freedom of labor and civil rights activists, and won new rights for the criminally accused. Today, liberal advocates seek to reform the prison system, end the death penalty, check police brutality, and impose more transparency on the War on Terror. These efforts are essential to the cause of justice, but they are also unavoidably libertarian. Criticisms of malign forms of government power cannot help but cast a shadow over government more generally. The dialectic in which left-wing criticisms of government coercion feed into right-wing criticisms of government regulation threatens to foreclose a progressive future.

See Jeremy Kessler’s more fleshed out take in the new N+1.


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