Cite as: 508 U. S. 491 (1993)
Kennedy, J., dissenting
risk from insured to insurer, the type of risk spreading that is the essence of the contract of insurance.
Further, insurer insolvency is not an activity of insurance companies that "relate[s] so closely to their status as reliable insurers," ibid., as to qualify liquidation as an activity constituting the "core of the 'business of insurance.' " Ibid. Respondent maintains, and the majority apparently agrees, that nothing is more central to the reliability of an insurer than facilitating the payment of policyholder claims in the event of insurer insolvency. This assertion has a certain intuitive appeal, because certainly the payment of claims is of primary concern to policyholders, and policyholders have a vital interest in the financial strength and solvency of their insurers. But state insolvency laws requiring policyholder claims to be paid ahead of the claims of the rest of the insurer's creditors do not increase the reliability or the solvency of the insurer; they operate, by definition, too late in the day for that. Instead they operate as a state-imposed safety net for the benefit of those insured. In my view, the majority too easily dismisses the fact that the policyholder has become a creditor and the insurer a debtor by reason of the insurance company's demise. Ante, at 506. Whereas we said in National Securities that the focus of the McCarran-Ferguson Act is the relationship between insurer and insured, 393 U. S., at 460, the Ohio statute before us regulates a different relationship: the relationship between the policyholder and the other competing creditors. This is not the regulation of the business of insurance, but the regulation of creditors' rights in an insolvency proceeding.
I do not share the view of the majority that it is fair to characterize the effect of Ohio's liquidation scheme as "empower[ing] the liquidator to continue to operate the [insolvent] insurance company in all ways but one—the issuance of new policies." Ante, at 494. The change accomplished by the Ohio statute is not just a cosmetic change in management. Once the Ohio Court of Common Pleas directs the
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