I’m generally on board with liberal critics of Kagan and Breyer. But I’m puzzled by the recent spate of articles wondering why liberals aren’t as upset at Kagan and Breyer over their Medicaid votes as conservatives are about Roberts. In fact, this difference in reaction makes perfect sense, and in this particular case Kagan and Breyer did the right thing:
There is, first of all, a perfectly good reason for the asymmetrical outrage directed at Roberts and Kagan/Breyer: Roberts was the swing vote. Had Roberts not sided with the Democratic appointees on the tax issue, the Affordable Care Act would have been struck down in its entirety. On the other hand, had Breyer and Kagan voted correctly on the merits of the Medicaid expansion, it wouldn’t have mattered anyway: Roberts and the four dissenting justices would have limited the government’s power in this respect with or without their votes. This is hardly a trivial distinction. It makes perfect sense to be more outraged over consequential votes than by inconsequential ones. Roberts’s (apparently post-conference) switch to uphold the Affordable Care Act had an important effect on American history, and for that reason generated substantial positive and negative attention.
Moreover, as Lithwick and Greenwald note—but do not, in my judgment, sufficiently emphasize—there was a unique strategic element to this case that gave a powerful reason for Kagan and Breyer to join Roberts. Roberts’s belated decision to uphold most of the ACA, first of all, probably compelled Kagan and Breyer to show some cross-ideological comity to encourage him to stay in the fold. Admittedly, we cannot know for certain what effect the strategic votes of Kagan and Breyer had on Roberts. (I hope that the Supreme Court leakers will find some time to tell us whether Breyer and Kagan changed their votes after conference.) Given that it’s unlikely that there was explicit horse-trading involved, it may always be unknowable. But this is where the first point becomes crucial. Liberals had nothing to lose by joining Roberts on this one issue, so they had no reason not to try to cement his belated switch.
And while the limitations placed on spending power by the Roberts opinion are bad, going along with the dissenters and ruling the whole Medicaid expansion unconstitutional would have been far worse. To the extent that Breyer and Kagan joining Roberts ensured the former outcome rather than the latter, they obviously made the right choice.