Jonathan Cohn

Obamacare Is On Trial. So Is the Supreme Court.

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Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act.

Now something else is at stake, too: The legitimacy of the Supreme Court.

Nobody knows how the justices will rule. And nobody can know, not even the justices themselves. On Friday morning, perhaps by the time you read this, they will meet privately to take their first vote. More often than not, this first vote determines the final verdict. But there are exceptions and Anthony Kennedy, on whose decision the outcome presumably depends, has a reputation for long deliberation and changes of heartparticularly in major cases like this one.

That’s good. With the result apparently in doubtsmart money still says the chances of the full law surviving are about 50-50Kennedy should think long and hard about how he wants the Court to rule. So should Chief Justice John Roberts, who appeared more skeptical of the government’s case during oral arguments but nevertheless indicated that he, like Kennedy, understood the government’s premisethat health care was a special market, perhaps requiring special intervention.

If that concern is not enough to sway the chief justice, than perhaps his frequently professed concern for the court’s respectability will.

Even now, I have trouble wrapping my mind around what I saw in the courtroom this week and what a majority of the justices may be contemplating. Kennedy’s second question, the one that so unnerved supports of the law, was whether the government had “a heavy burden of justification to show authorization under the Constitution.” But the heavy burden in this case is on the justices threatening to strike down health care reform. They have not met it.

Rarely in American history has the Court struck down laws in decisions that would have such quick, widespread impact. In the modern era, only two cases come to mind: Brown v. Board of Education and Roe v. Wade. Both were acts of ambitious, even audacious judicial activism. But, in two key repsects, they were different from a potential ruling against the Affordable Care Act.

Brown was a unanimous, nine-to-zero decision. Roe was a lopsided seven-to-two. These margins mattered: The justices knew that their decisions would be controversial, in part because they were overruling democratically elected majoritiesin these cases, state legislators who’d passed laws enforcing segregation and prohibiting abortion. The justices’ authority in these cases derived, in part, from their moral authority. A closely divided bench would have made that impossible.

Virtually everybody agrees that a vote to strike down the Affordable Care Act would be five to foura bare majority. And it would be a bare partisan majority, with the five Republican appointees overruling the four Democratic appointees. The decision would appear nakedly partisan and utterly devoid of principle. Appearances would not be deceiving.

The second distinction is even more more significant. Today Brown is a nearly universal icon of social progress, while Roe remains an object of great controversy. But, for better or for worse, both cases represented efforts to change the everyday reality of American life. With Brown, the justices were tearing down barriers to racial equality; with Roe, the justices were eliminating laws that prevented access to abortion.

But in this case, nobody has said they want to stop government from providing universal access to health care. On the contrary, the plaintiffs have stated that a program like Medicare, in which the government provides citizens with insurance directly, would be clearly constitutional. They’ve also stated that a scheme of compulsory private insurance would be constitutional if somehow the government could make people buy it when they show up at the hospitalsuggesting, as Elena Kagan stated, that the only problem with the Affordable Care Act is temporal. 

Most amazing of all: The plaintiffs have conceded that a universal health insurance program would be constitutional if, instead of penalizing people who decline to get insurance, the government enacted a tax and refunded the money to people who had insurance. As Sonia Sotomayor noted, functionally such a scheme would be exactly the same as the Affordable Care Act. Both the plaintiffs and some of the skeptical justices have also indicated that the Affordable Care Act would be constitutional if the law's architects had simply used the word "tax" to describe the penalty.

Think about that for a second: If the justices strike down the Affordable Care Act, they would be stopping the federal government from pursuing a perfectly constitutional goal via a perfectly constitutional scheme just because Congress and the Preisdent didn’t use perfectly constitutional language to describe it. Maybe labels matter, although case law suggests otherwise. But do they matter enough for the Court to throw out a law that will provide insurance to 30 million people, shore up insurance for many more, and help to manage one-sixth of the American economy? It wouldn’t seem so.

Of course, the conservative justices who would invalidate the Affordable Care Act may not hold the law in especially high regard. Samuel Alito, in particular, suggested during oral argument that he had serious problems with younger, healthier people subsidizing, via their insurance premiums, the medical expenses of older, sicker peoplewhich just happens to be the defining feature of Medicare, Social Security, and every other social insurance scheme on the planet.

Alito is entitled to his opinion about what makes for good legislation. But he’s not entitled to impose that opinion on the country and his colleagues aren’t, either. Their job is to determine whether a law is constitutional, not whether a law is wise. And the more significant the law, the more unambiguous their judgment ought to be.

follow me on twitter @CitizenCohn

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