Unlike Sarah Palin, if someone ever asks me to name a Supreme Court decision with which I disagree, I could probably rattle off at least a dozen from the last decade. Though, in fairness to the former Governor of Alaska, who couldn’t name a single case (aside from Roe v. Wade), I’ve spent the last eight months in law school reading and rereading Supreme Court opinions, an experience that has been both mind-numbing and illuminating at the same time. Of course, I do not claim to be an expert (maybe I can lay claim after a few more years of incessant studying), but here’s my takeaway:
Conservatives love to denounce judicial activism whenever courts affirm cases that expand or acknowledge civil rights and equal protection under the law. For example, when courts rule in favor of allowing gay and lesbian Americans the opportunity to access the 1,100+ tax benefits that their heterosexual peers can access as a result of marriage, conservatives suggest these judges are “legislating from the bench.” It strikes me as a strange and hypocritical balancing act: Conservatives, who decry government intervention and like to promote the autonomy of religion, seek to use their own religious beliefs about the sanctity of their own religiously-based ceremonies as justification for government intervention and institutional discrimination. That said, the Supreme Court has not yet taken up the issue of gay marriage, and I doubt they will any time soon. But they have, in recent years, demonstrated their own propensity for judicial activism, and to me, there’s an amazing irony and disconnect, which is particularly present in the current debate over the constitutionality of health care reform and the individual mandate. Bear with me here; I have a point.
Currently, the Supreme Court is deciding whether the government has the ability to require Americans to purchase health insurance, which conservatives and opponents of the law believe to be an overreach of federal authority that undermines our fundamental liberty to not do anything at all, ever– a ridiculous proposition based on the false dialectic between activity and inactivity. In my last post on this issue, I blamed the fiction writer Ayn Rand for first advancing this absurdity, which is predicated on the belief that there is no such thing as interdependence and that the social contract should be considered optional. Aside from the indisputable fact that we are all actors in the health care market by virtue of our birth and that one’s decision to be selfish and not purchase health insurance directly causes an increase in costs and a decrease in available coverage for everyone else, opponents of Obamacare are advancing the argument that an individual should still maintain the right to make the rest of us pay more for our insurance– while, at the same time, the rest of us shoulder the burden of health care costs for that person who just doesn’t want to contribute at all. That’s the current system. That’s why so many Americans are uninsured and uninsurable. That is why health care costs are astronomical.
The Supreme Court has, in recent years, been more than willing to put up procedural blockades for a citizen seeking judicial relief, by upending the well-established pleading standard in Twombly and Iqbal and the triumvirate of cases specifically focused on summary judgment. Most recently, in Howes v. Fields, they have also been willing to discount a citizen’s Fifth Amendment privileges against self-incrimination and the right to a Miranda warning. Indeed, during the Bush administration- beginning with Bush v. Gore- the Supreme Court consistently endorsed an expansion of judicial discretion over the rights of an individual or the appointment of a President, even when it required the Court to finesse the Constitution and even when it forced them to say, “This opinion is not precedent” (which is, unquestionably, the definition of judicial activism). If this is not evidence of judicial activism and the erosion of individual rights, I don’t know what is, and it has all occurred under a majority conservative Supreme Court.
I mention all of this in order to make the point that the Affordable Care Act is simple: The government has the right to tell people who affect the health care market that they must actually participate in the health care market, because, truth be told, they’re ALREADY participating, like it or not. We’re not reinventing the wheel here; every other industrialized country on the planet maintains a similar system.
I’ve read all of these cases during the last few months, and I’ve listened to the six hours of oral arguments. And again, it’s been mind-numbing and illuminating. I don’t think anyone can read the tea leaves. I know the so-called experts believe Anthony Kennedy will decide this case. Justice Kennedy’s questions, however tough they were against the government, also hinted at a deep skepticism and trepidation over his authority to overturn an act of Congress. And the same can be said, though to a lesser extent, of Chief Justice Roberts, who seemed to acknowledge that all Americans are in the health care “market,” which would justify the reliance on the Commerce Clause and validate the constitutionality of the individual mandate.
I think that the Justices were obligated to ask the tough questions, that anything less would have been a dereliction of their duties. They peppered the government with tough questions on an easy case. Still, it won’t be an easy decision, and keep in mind, their decisions have been erratic and inconsistent. But, at the risk of appearing like I can read the tea leaves, I think there are only two options: They either kill the entire bill 5-4 (which seems unlikely to me, given the expressed concerns about the potentiality of judicial overreach) or they reluctantly affirm the government’s position 6-3 (by way of including a ton of dicta about how to make the bill better align with the conservative policy agenda).