People like to live in important times. This is why you will see fairly silly statements like, ‘politicial discourse is more acrimonious than ever’ even though no one is caning anyone on the floor of Congress, like they did in the 19th century.
60 years ago it was culturally taboo for even different types of Protestants to marry each other but Democrats marry Republicans all of the time and have forever. If anything, politics is far less acrimonious that in the past, we just have a rapid communications medium that amplifies when things get weird. And then we have people who make money creating problems to solve
A few weeks ago, the Supreme Court heard arguments regarding the Affordable Health Care Act; called ‘health care reform’ if you like it, ‘Obamacare’ if you are against it.
In the past I thought nationalizing health care was generally a bad idea but I thought the time was right in 2009 for two reasons. Reason one, we seem to have no interest in tort reform and ‘defensive medicine’ – protection against lawsuits by overtesting and overmedicating patients – is far and away the most expensive aspect of health care. 6X as much money is wasted on defensive medicine as is wasted on high malpractice insurance costs. Without tort reform, there can’t be any natural health care industry change and lawyers insist they are friends of the little people against big, evil corporations – former Sen. John Edwards is the poster child for the slimy lawyer getting rich creating fear in the public so if you think that guy cares about you, okay, but the problem goes away if the whole thing is nationalized and no one can sue. I suppose it is nice that people with socialized health care still come here for the most advanced treatment but I don’t much care that rich foreigners can do something poor Americans cannot. The second argument most often invoked against nationalizing health care is that we would pay European taxes if we did. Well, halfway through my working career I have paid European taxes even though I have never lived in Europe – but I get little in return. So my feeling became that if poor people can get free health care, even if it’s not as high in quality as the rich have now, that’s a win.
And quality will go down for the poor but not the rich. Any smell test shows that. It’s still better than nothing.
What we got instead of real health care reform was five competing proposals, none of them finalized when Congress rammed this into law, and no idea on costs. People resent that, even people inclined to like the idea. We were told we were bad Americans if we didn’t get behind something but we didn’t even know what it was. The individual mandate, which President Obama criticized his opponent Hillary Clinton about during the Democratic primaries of 2008, was suddenly necessary. Everyone will need health care as they age so they should start paying right now, was the government argument.
During the hearings on the law, Supreme Court Justice Antonin Scalia posed a simple scenario to t Donald Verrilli about the Obama administration’s contention that, since everyone may need something some day, the government can force them to buy it.
“Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli,” Scalia said. “[I]f people don’t buy cars, the price that those who do buy cars pay will have to be higher. So you could say in order to bring the price down, you are hurting these other people by not buying a car.”
Well, that is the problem. Common law in America does not generally penalize inaction so it placed the government in the uncomfortable position of contending they must infringe individual liberty about not doing something to enforce the public good. Abortion proponents will not like that, since the majority of the public is against abortion on demand. Individual liberty is considered paramount to most Supreme Court justices – they are looking for a limiting principle and the government was arguing against individual liberty.
The other problem is the government, in its somewhat flawed compromise approach, was arguing they have the right to impose a penalty on people who do not buy insurance because Congress has the right to tax. But they don’t want to call it a tax because the Anti-Injunction Act would be invoked and that would delay a decision until 2015.
Justice Samuel Alito called that out immediately. “General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” he said to the U.S. Solicitor General. Amusing, but it highlights a problem for the Supreme Court too – they can’t win.
Back to living important times.
After the 2000 presidential election, when the Supreme Court decided they would not let the state of Florida keep counting votes until Vice-President Al Gore got the result he wanted, supposedly the Supreme Court had no credibility with the public.
Now we are hearing it again. This time, instead of partisans contending the Supreme Court is doomed unless they overturn en election result and put the guy they want in the White House, they are contending unless a policy decision by the guy they voted for is upheld, the Supreme Court is doomed.
But James L. Gibson, a professor of political science at Washington University in St. Louis writing at Miller-McCune, says the Supreme Court will still be regarded as legitimate even if they vote against the president on his defining issue. The Supreme Court seems to be evenly split, a true rarity, with a swing vote. For the bulk of the 20th century the Supreme Court was overwhelmingly liberal – I mean, a progressive, Oliver Wendell Holmes, went out of his way to uphold forced sterilization of Americans. An overwhelmingly liberal court in the 1970s upheld abortion by a 7-2 vote. It would have been 9-0 if the case were not so badly presented. That’s pretty liberal.
Did the ‘legitimacy’ of the Supreme Court collapse over abortion? No it did not.
President Obama, arguably the most contemptuous president of the last 75 years about the Supreme Court, called them out once again after they heard arguments on the matter.(1) He declared that unless they voted his way they were guilty of judicial activism – the very thing conservatives dislike about the Supreme Court. (2)
“For years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint—that an unelected group of people would somehow overturn a duly constituted and passed law,” he said. “Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”
While the Supreme Court kept quiet about his latest dig at them, other judges did not like the Executive Branch taking shots at their equal standing under the Constitution. Federal appeals court Judge Jerry Smith gave a Justice Department lawyer a strange order immediately after Obama’s remarks. Smith demanded a letter from the government by noon that following Thursday stating its position on the power of the courts to strike down laws.
Basically, he wanted to know if the president truly believed the Executive and Legislative branches could pass a law, constitutional or not, and the Judicial branch had to just let them do what they wanted. Dana Kaervang, the likely surprised DoJ lawyer replied that the court had the authority strike down laws: ““Yes, your honor. I, of course. There would need to be a severability analysis, but yes.”
Kaervang had to be wondering why the president, possessed of a law degree, would have introduced insecurity into the role of the Supreme Court when he may need to rely on their cultural legitimacy if they rule in his favor. And why he would create headaches for all of them in the interests of political theater. Basically, instead of getting down to business, a judge seemed to want to know if that was rhetoric and not policy, and he wanted it in writing.
Obama’s attempting to rig a Supreme Court opinion is nothing compared to another Democrat, Franklin Delano Roosevelt. When the Supreme Court struck down some of his more over-the-top New Deal laws, he had a law created in 1937 that would let him add Supreme Court justices – up to six(!) – for every Justice over 70.5 years old. He basically set out to pack the Supreme Court with people who would vote for stuff he liked. FDR gets a free pass from Republicans because he won World War II and he gets a pass from Democrats because he is a Democrat, so they ignore the fact that he imprisoned Japanese citizens without cause.
Compared to FDR, president Obama is downright respectful about the power of the judiciary.
The Supreme Court is of course going to be activist – one justice thinks being a latina female gives her some special judicial power – but that doesn’t put the institution at risk. It has gotten plenty of things wrong, like Jim Crow laws and eugenics, but people mostly feel like, over time, they get enough right and are a positive third rail of the Constitution along with Congress and the President. To the public, they deserve the respect they get and that isn’t going to change because of one decision.
NOTES:
(1) Yes, a candidate who got elected partly because he lied and did not take public financing in 2008 and so was able to raise and spend twice as much money as his opponent, and therefore more money than Kerry and Bush spent in 2004 combined, felt like the Supreme Court should have kept the rules that benefit only him in place and not letting campaign financing be the free-for-all he took advantage of.
(2) Critics contend that the court of William Rehnquist, more conservative than Burger or Warren, struck down more Congressional laws than the other two and therefore was more ‘activist’ – but obviously a more liberal court struck down fewer laws with liberal slants than a more conservative court would. Judicial ‘activism’ seems to be an argument made by the side that loses whereas more moderate Constitutional scholars regard activism as in interpreting the Constitution based on popular cultural winds of the moment.