Showtime At The Supreme Court
Dan emailed me several days ago asking whether I thought I should write a preshow (my word, not his) post about next week’s marathon Supreme Court oral arguments on the constitutionality of Obamacare, a.k.a., the Affordable Care Act. Six hours of argument, two each day, Monday through Wednesday, in which the Court will hear argument, first, on whether the courts even have “jurisdiction” (the legal authority) to even consider the challenges to the Act’s constitutionality before the challenged provisions of the Act have gone into effect, and, then, on the challenges to separate parts of the Act by various challengers who will be directly affected by the respective provision.
It promises to be a long three days. And by the time Dan emailed me, I already was sick of reading previews. I wrote back to Dan:
I don’t think there’s anything to say, really, at this point. There’ve been a zillion articles/commentaries about it within the last week or so, but they don’t really say anything. Mostly they just kind of speculate about how Roberts, Scalia and Kennedy might vote, based on things like what Scalia wrote in a concurring opinion in a Commerce Clause case a few years ago (Scalia expressed an “expansive” view of Congress’s Commerce Clause powers), and how Roberts wants to be remembered. It’s obligatory writing for people like Adam Liptak, the NYT Supreme Court correspondent, but pretty pointless, really.
But two articles published on Thursday, one by former (longtime) New York Times Supreme Court correspondent Linda Greenhouse, who in retirement writes a periodic commentary column in the Times, and Slate Supreme Court and general-legal-issues writer Dahlia Lithwick, are, I think, worth reading.
Greenhouse’s is titled “Never Before,” and the thrust of her article is that those two words—“never before”—are the sum and the (non)legal substance of the challengers’ arguments. “Unprecedented,” she notes, “is a description, not an analysis.” Or a legal argument. It is instead merely a political argument. And transparently so, which is why she predicts that the Court will uphold the statute, by a comfortable margin.
Well, actually, she predicts that the Court will uphold the statute by a comfortable margin because, well, for all the incessant hype, this is not, under extensive and pretty darn clear Supreme Court precedent relevant to each of the separate stated constitutional grounds argued, a close case at all—and because John Roberts cares a lot about how the Court is perceived during his tenure as its chief.
Or, more accurately, at least in my opinion, because under Supreme Court precedent this is not a close case and this is too high-profile a case for its outcome not to impact the public’s perception of the Court. By which I mean, and I think she means, that while Roberts & Co. regularly make out like bandits in the night, hijacking the law and transforming it into reflection of a 1980s Federalist Society checklist, they do so only to the extent to which they expect that they can escape widespread public revulsion. Which in turn is determined by the extent to which the news media actually focuses on these ideological-agenda rulings before the Court issues the ruling.
That, after all, is how we got Citizens United v. FEC. Roberts & Co. misjudged. Oops. Well, for heaven’s sake … I mean … y’know … who knew that the public would, um, actually get the Citizens United ruling?
Lithwick’s article makes much the same point as Greenhouse’s—that as a matter of law, this is not a close case—but with a slight twist. After giving a nod of recognition to the Greenhouse , which was published in that morning’s paper, Lithwick says that while she expects that the Court will uphold the statute, she’s not all that sure. As a legal matter, she says, this case is not the case of the century nor of the decade nor even of this term. Unless, of course, a 5-4 majority surprises almost all the legal commentators who actually know the law and follow the Court.
Which, she says, wouldn’t surprise her all that much, because the case is not really about the law at all, but instead about “optics, politics, and public opinion.” But ultimately, she thinks, Roberts and one or two of the others just won’t think this case is worth the cost in public opinion.
I agree. It’s not as if they get to pick a president in this one. There are, as Lithwick notes, other cases in their pipeline that could well do that. The oral arguments in those cases are, like the arguments next week, likely to be mere shows. But with a more limited-release audience and opposite results.
Oh I don’t know. They may be reading the likely potential of 2 Obama appointments and thinking nows the time. Besides, you guys really think they care now about their image to the public? What the hell is the public going to do? Demand one or two of them are impeached? Like we could ever get a congress elected to do that.
Jeffre Toobin writes in the current New Yorker that the commerce clause allows the Congress to do anythin it wants as long as by some stretch of the imagination it can pretend it has something to do with interstate commerce. So no doubt when the Congress says you have to wear an IUD because, well, because they are sold and that’s commerce, and that’s interstate commerce because, well, commerce is conducted with Federal money so therefore it’s interstate..
Now you are in favor of Obamacare so you will think the reasoning is just fine, as does Toobin.
But as a person who is in favor of universal, single payer, and therefore some kind of godless comminist, i think you are gaily traipsing down the primrose path to destruction.
Now, it happens I have long known that the law is a fraud we have to put up with because we can’t think of anything better. But I sure could think of something better than either “the mandate” or the twisted law you are going to use to justify it. And I think, oddly enough, that “the cost in public opinion” may surprise you, and it won’t be in your favor.
Why, is there nothing then you can’t do in the name of the commerce clause?
Or is it a mystery known only to those who “actually know the law,” as opposed to those of us who worry about little things like civil liberties as they are actually experienced by, say, human beings?
St Thomas More told a little story about a Roman emperor who wanted to punish someone by feeding his family to the lions. But there was a Law that virgins could not be fed to lions, and this left the emperor in doubt about what to do with the young daughter of the man who had earned his displeasure, so he turned to his lawyers.
No problem, they said. First deflower her; then devour her.
Ah, see what you can do when you actually know the law.
The Commerce Clause gives the Court its power to rule on a wide range of subjects. When you buy health insurance, you’re buying what the HI company is selling. If that’s not commerce I don’t know what is. Practically everything people do with their time and their money occurs in some kind of commercial exchange. If the Court reduced its power of judicial review over commerce by limiting the present extent of the Commerce clause, it would be just about putting itself out of business. IMO, that is.
It is a little too late for the Court to bewail its loss of reputation for fairness after the Bush v. Gore decision. What’s gone is gone though Roberts doesn’t need more grief. But, if he has to choose between the Court’s institutional well-being and the Federalist Society’s notions of individual freedom, I suspect the Court will win out. Otherwise, why be Chief Justice of the Supreme Court? NancyO
Note–An individual’s not buying health insurance forces a different result on all buyers of medical services. So, is included in the definition of commerce. NancyO
There are limits to what Congress can do in the name of the Commerce Clause, but because medical treatment for uninsured patients, including those traveling from one state to another, requires cost-shifting of huge amounts of money, some of it interstate, a law like the ACA is within the Commerce Clause limits.
That’s not to say that there may not be some other reason why a statute that falls within Congress’s Commerce Clause powers is unconstitutional, and although the people challenging the constitutionality of the mandate don’t expressly say this, their “freedom” and “liberty” claim is really a claim that the mandate violates the Fifth Amendment’s due process clause under a constitutional-law doctrine known as “substantive due process.” (That doctrine also is the legal doctrine under which the Supreme Court ruled that states can’t bar the sale and use of contraceptives, and is the doctrine underpinning Roe v. Wade and Lawrence v. Texas, the opinion that struck down state sodomy laws as unconstitutional.) But the Commerce Clause plays no role in this, one way or another.
Sure, if the Court strikes down as beyond Congress’s authority under the Commerce Clause a statute that requires people to do something or that bars them from doing something, then people are “free” to do or not do whatever the statute required or barred. But that’s just incidental. It isn’t less of an imposition on liberty for Congress to require people who can afford to do so to buy health insurance directly through the government by a tax under Congress’s taxing power (which is what the government does with Medicare) than to require then to buy it elsewhere under Congress’s Commerce Clause power.
I agree with you, Daniel, that Roberts and at least two or three of the other members of the conservative Five (Kennedy is a possible exception) don’t care nearly as much about public opinion of the Court as some of the reporters who cover or covered the Court think. I think they have a 1980s-era checklist of cases and legal principles that they want to overturn, and they will do that almost no matter what. But I also think they might pause in their juggernaut in this one case, for the reason that Lithwick says, and a ruling striking down the mandate would almost certainly conflict with positions by Scalia and Roberts in other fairly recent cases, in which their position upheld law and legal principles of the sort that conservatives (at least 1980s-era ones) hold dear. Scalia might not care about appearances in swinging back and forth and (down the road) back again, in order to reach conservative agenda results. But Roberts might care somewhat.
Is it really plausible that Kennedy would vote against the law but Scalia, Roberts, Alito, and/or Thomas would vote in favor of the law and hand a victory, rather than a defeat, to the Obama administration in an election year? (They could become persona non grata at conservative events!) On the other hand, the four most conservative justices might do as they please if Kennedy is the fifth vote in favor of the law. In that case, perhaps Roberts would prefer a lopsided vote to make the decision appear to be unavoidable based on legal reasoning.
There are several segments to the decision the Court will make. They have quite a bit of leeway in how they would approach each segment. It will be fascinating after the decision comes out to try to make sense out of what could be another patch-work of conclusions and reasoning behind their holdings. NancyO
I hope my post doesn’t imply that I think Kennedy might be the sole vote against upholding the Act. That certainly is not what I meant to say or imply. And it’s absolutely inconceivable—not possible at all—that Thomas would vote to uphold the statute. As for Roberts, what a lot of Court-watcher pundits are saying is that Roberts will not be the fifth vote to uphold the statute, but if there is a fifth vote, Roberts will make himself the sixth vote to uphold it. That’s because as chief justice, when he’s in the majority he decides who will write the majority opinion, and he probably would want to be the one to write it in order to make sure the opinion is as narrow as possible in what it says about Congress’s Commerce Clause powers.
I was not reading that implication into your post, Beverly. My point is that it seems improbable that Roberts would provide a 5th vote, or Scalia, or Alito (or Thomas). You seem to agree. One or more of them might be willing to provide a 6th or 7th vote to uphold the law, but only Kennedy can be the fifth vote. He will decide the headline outcome. Who writes the opinion, the final vote tally, and whether the ruling is narrowly defined or not, won’t change the two words heard by most voters: Obamacare (Constitutional or Unconstitutional).
No, Nancy. It really doesn’t. There are other options. One of which is single payer, universal care, paid for by either a dedicated tax or out of general taxes. Of course you could let the uninsured just pay for their own care, or go without. That is another option.
You don’t get to say either “there is no difference between a tax and a mandate to buy” or that “there is no other choice..” That’s just stopping thinking where you want to get off.
What you are doing with Obamacare is locking in the current sacred American way of doing health care. High profits to the provider, crippling costs to the buyer… now whether he wants to be a customer or not.
Sounds to me like a fascinating branch of abnormal psychology. Government as a spectator sport.
Coberly–I meant that the idea that it’s unconstitutional to require a person to buy insurance is ridiculous. I don’t like the universal insurance deal. But it’s not unconstitutional because it comes under the Commerce clause.
Coberly, I think what Nancy means by “forces a different result on all buyers of medical services” is that treatment of uninsured patients raises the costs of medical services to others, by higher premiums, or by government funds to hospitals, or by higher prices for medical services because the provider (the hospital, for example) knows that they will not be paid for services to some uninsured patients.
Yup.
Exactly, coberly.
PJR, I wrote a while back that I thought Kennedy was less likely than some of the other conservatives to vote to uphold the law. But recently Scalia’s made public comments that I think hint that he plans to vote to strike down the mandate, and probably the rest of the statute along with it. This is despite what he wrote in Raich (the marijuana-growing Commerce Clause case in 2005). So that leaves Roberts and Alito. It wouldn’t shock me if Alito rather than Kennedy provided the fifth vote, but I think that in the end Kennedy will say that Congress established a strong enough evidentiary record showing the clear, large impact of the uninsureds’ use of the healthcare system on the interstate healthcare market (premiums, pricing of services) and on government healthcare expenditures, that the individual mandate is within Congress’s Commerce Clause powers.
Btw, the last two paragraphs of a NYT article today called “Lobby Groups Blanket Supreme Court on Obama Health Care Plan” say:
“Bradley W. Joondeph, a law professor at Santa Clara University who has cataloged briefs in the case, said … he believes it is unrealistic to think the court could fully insulate itself from outside pressures.”
PJR, I wrote a while back that I thought Kennedy was less likely than some of the other conservatives to vote to uphold the law. But recently Scalia’s made public comments that I think hint that he plans to vote to strike down the mandate, and probably the rest of the statute along with it. This is despite what he wrote in Raich (the marijuana-growing Commerce Clause case in 2005). So that leaves Roberts and Alito. It wouldn’t shock me if Alito rather than Kennedy provided the fifth vote, but I think that in the end Kennedy will say that Congress established a strong enough evidentiary record showing the clear, large impact of the uninsureds’ use of the healthcare system on the interstate healthcare market (premiums, pricing of services) and on government healthcare expenditures, that the individual mandate is within Congress’s Commerce Clause powers.
Btw, the last two paragraphs of a NYT article today called “Lobby Groups Blanket Supreme Court on Obama Health Care Plan” say:
“Bradley W. Joondeph, a law professor at Santa Clara University who has cataloged briefs in the case, said … he believes it is unrealistic to think the court could fully insulate itself from outside pressures.”