People who follow the law will remember this past week for a long time. Here's why.
Now safely ensconced 1,500 or so miles from the crucible of Washington, and having slept not once but twice on it, I'd like to wrap up this extraordinary week in legal history with a few brief thoughts about the just-completed arguments in the Affordable Care Act cases. A lot of people who care about the law, and politics, and health care will remember this week for a very long time, no matter what the United States Supreme Court decides about the federal health care law. And it's funny how even just two days away from the melee has given me a little perspective on what went down.
1. A full season. The thing about Bush v. Gore, which everyone cited this week, is that the justices rendered their ruling almost immediately. The final stay in that case was issued on a Saturday morning. Two days later, on a Monday, the justices heard oral argument. The next night they rendered the decision that gave the election to George W. Bush (a decision, I will add, that resulted in the continuing conservative dominance of the Court today). On the care act, we are going to have wait roughly 90 days for an answer to the big questions. Those next three months seem like they would be more likely to work in favor of the act than against it.
2. Lay off The Donald. Of all the themes of the week, perhaps the most unfortunate was the concept that the care act is going to be struck down because of the performance of the solicitor general of the United States, Donald Verrilli. This is nonsense -- and precisely the sort of horse-race crap that usually sullies political coverage. Verrilli didn't just wake up Monday morning and become an idiot. First, he was facing a hostile court (more hostile, I will again add, than any appellate court yet to hear these care act cases). Second, it just doesn't matter. Oral argument is just the swirl at the top of the sundae in cases like this.
3. The lower courts. One under-reported theme this week was the gulf between all those lower court decisions upholding the act and the reception the statute received from the Court's conservatives. If the law is as patently unconstitutional as some of the justices painted it to be, then why wasn't it routed at the lower court levels? Why did conservative judges like 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, an appointee of George W. Bush, endorse it? The dozens of lower court judges who considered the law a valid exercise of Congressional power are just as smart as the justices, aren't they? And they are supposed to be following existing precedent, aren't they? It's the Supreme Court that's the outlier here.
4. Fundamentalists. Opponents of the law say it represents a "fundamental" expansion of federal power. Supreme Court Justice Anthony Kennedy wondered Tuesday whether it might represent a "fundamental" change in the relationship between individuals and the government. But if the Court were to strike down the act it would be a fundamental reversal of generations of judicial deference to federal economic legislation. Even if Clement's argument is true, who should make the fundamental change contemplated by the act? Elected representatives? Or unelected judges? It's the very same argument conservatives have been making for years.
5. The Umpire. There has been a lot written and said this week about Chief Justice John Roberts and the fact that the care act cases represent his first real challenge as the putative leader of the Court. It's true. But the idea that the chief justice is going to emerge here as a Court politician is wistful. Chief Justice Roberts is not a deal-maker, or at least hasn't shown himself to be one, despite numerous opportunities to do so. If he saves the act, he will indeed give meaning to his infamous umpire analogy at his confirmation hearing. If he doesn't, it's time we all acknowledged him for what he is: a conservative ideologue.
6. It's Kennedy's World. Compared to the Chief Justice, Justice Kennedy is a virtual Thurgood Marshall. He has consistently voted to narrow the scope of the death penalty and wrote the rulings in Romer v. Evans and Lawrence v. Texas, the two decisions that will form the basis of the inevitable ruling that outlaws bans on same-sex marriage. Does he feel today that this history gives him a little leeway to stick it to liberals with a vote against the health care act? Does he feel like he's already established his progressive (or at least moderate) bona fides? The chief justice has something to prove to progressives. Justice Kennedy doesn't.
7. Smug justice. I admit I lost my temper on Wednesday. The arguments in the Care Act cases may be funny to Justice Antonin Scalia, the bully that he is, but they aren't funny to the single father who will avoid bankruptcy because of the law, or to the millions of others who will benefit from the Medicaid expansion or from the provision that allows young people to stay longer on their parents' health care plans. Justice Scalia gets his health insurance from the government. To him, the care act is just another statute. Fine. Let him be so dispassionate when his conservative fellow travelers ask him to endorse an act of Congress.
8. Empathy. Justice Samuel Alito has plenty of empathy, all right. But it's empathy for the insurance companies. He didn't ask a single question over three days about how the Affordable Care Act's demise might impact the millions of Americans who already are benefiting from it. But twice in his questions, he expressed concern for the burden the insurance companies might have to bear if only part of the care act, the part without the individual mandate, were to survive. He isn't the first justice to be emphatically empathetic with Big Business. But remember this the next time a politician blasts judicial "empathy."
9. Back to Bush v. Gore. Elections always have consequences. But elections aren't always decided by the United States Supreme Court. Justices Scalia, Kennedy, and Clarence Thomas were responsible for Bush v. Gore, the ruling that gave us George W. Bush who, in turn, gave us Justice Alito and Chief Justice Roberts. If Al Gore had won that election, the Court now would have a liberal majority. Whatever else that might mean, it would mean that the solicitor general this week would have received a much warmer welcome. Remember that if you don't think you want to vote this November. This sort of stuff is at stake.
10. Funding the Act. Here's an idea. If the Court's conservatives strike down the mandate, or the entire Care Act, Congress should pass a law that says that anytime anyone ever uses the words "liberal judicial activism" together in a sentence they have to pay a $10,000 fine, the proceeds of which would go to help more people get health care. When I went to law school, and I think I was paying attention that day, we were taught that federal statutes are presumed to be constitutional -- that challenging parties bear the burden of justifying why they should be struck down. Whatever happened to that limiting principle?
11. Speaking of which. Another meme of the week was the concept of a "limiting principle" -- that the feds should have been able to identify the spot where the Court would draw a line on federal laws that require people to do things they don't want to do. Why not require health club membership? Justice Scalia asked. Why not require burial insurance? Justice Alito asked. You know what I think about questions about "limiting principles"? I think they are a convenient excuse -- a strawman -- judges use to strike down laws they don't like. How about the justices focus upon the law at hand and worry later about a Mandatory Broccoli Act?
12. Interstate commerce. If health care in America isn't a national industry, crossing over state borders, then the constitutional phrase "interstate commerce" has little contemporary meaning. And if Congress can't address the excesses of the health care market, then there will be a whole lot of other arguably reasonable things Congress won't be able to do if the Supreme Court issues a ruling striking down the care act. The Constitution as a "suicide pact"? Combine "legislative inertia" with the "judicial neutering" contemplated here by the conservative justices and Congress might as well take yet another 109 days off next year.
13. Who wins? It all depends upon Justice Kennedy's conscience, Chief Justice Roberts' sense of history, and whatever powers of persuasion the Court's liberal wing has upon those two conservatives. Me? If I were explaining it to my son, I would say, "The Constitution is what the justices say it is, nothing more and nothing less. But this law is clearly within Congress' power. And if the Court strikes it down, it will mean that five unelected judges will have blocked a good faith effort by elected officials to fix a problem that everyone acknowledges exists in this country." If the Roberts Court strikes down this law, in other words, it ought to end any reasonable political debate about the source of "judicial activism" in America.