Democratic Supreme Court Justice Elena Kagan joined conservative justices June 28 in a 7-2 vote to strike down Medicaid expansion by states under the Obama-backed Affordable Care Act. Kagan, at left, joined the first ruling since the 1930s to void federal legislation for exceeding congressional power under the Commerce Clause.

Her vote has escaped major attention in the general media because a separate 5-4 majority, including her, upheld the law’s insurance mandate on the grounds that Congress could impose it as a “tax.” But her legal rationale has important long-term consequences for other federal legislation if the Court starts returning to a theory court conservatives used during the New Deal until 1937 to thwart Democratic legislation.

Legal critic Glenn Greenwald noted problems with her opinion in a Salon column excerpted below entitled, Kagan’s Medicaid vote. Greenwald, like the Justice Integrity Project, opposed Kagan’s Senate confirmation to Supreme Court in 2010. Our Project did so out of concerns over her commitment to civil rights. Greenwald shared those views, but also regarded her as a shaky replacement for Republican liberal John Paul Stevens Read the rest of this entry »