The Healthcare Decision: Parsing the Supreme Court

The Supreme Court decision on the constitutionality of the Affordable Care Act has come and gone. The movement towards universal healthcare in this country has survived and now moves on. Supporters are happy, but concerned that the commerce clause has been weakened and will suffer further attack in the future. Opponents of the law are outraged that John Roberts broke ranks and failed to do the job for which he had been hired—he was a traitor to the Republican cause.

Ronald Dworkin provides us with insight into the viewpoints of the various justices and hints at what might be expected in the future. He also concludes that progressives should be happy with the decision because they gained more than they lost. Dworkin’s article appeared in the New York Review of Books and bore this catchy title: A Bigger Victory Than We Knew.

It was clear before the trial that the five conservative justices were unlikely to look kindly on anything that could be construed as an extension of the powers available under the commerce clause. The critics of the law were clever in turning the argument into one of regulating "inactivity" rather than "activity." The conservative five bought this argument and ruled against the mandate based on inapplicability in terms of regulating interstate commerce. Roberts made it clear in his opinion that he agreed with this position, but he said he supported the government’s secondary argument that the mandate was legal under the government’s power to tax. What are the ramifications of these rulings?

Dworkin is unsure if the precedent set here will have significant impact in future cases. The justices merely forbad the government from regulating inactivity, an issue that apparently never came up before—presumably because it is a strange legal question upon which to base important decisions.
"....the distinction between action and inaction is always suspect, in legal contexts as well as everywhere else, because inaction can always be described, differently, as an action. Is running a stop sign the action of driving through the sign or the inaction of failing to put on the brake? If I choose not to buy commercial health insurance, that is, from one perspective, inaction: there is something I failed to do. But from another perspective it is action: I chose deliberately to run a risk—the risk of falling ill without the benefit of the insurance I could have bought. The distinction between action and inaction depends only on a choice of description; it is frightening to think that a matter of such enormous political consequence—whether Congress can construct a national health care scheme—should be thought to turn on a verbal preference."

Given that lack of clarity, it is unsure how any future case might be impacted.
"Roberts’s ruling therefore creates a new constraint on the powers of the national government, though it is impossible now to predict how significant that new constraint will turn out to be."

In spite of disdain for the legal arguments over regulation of interstate commerce, Dworkin is thrilled that Roberts chose to highlight the power of the government (society) to impose a tax in order to arrive at a common good. It seems absurd that this should be something needing discussion, but in these times perhaps a reminder is required.
"For centuries the most powerful and influential argument for social justice has been essentially an insurance-based argument. Justice within a political community requires that the most catastrophic risks of economic and social life be pooled. Everyone should be required to acquit his moral responsibilities to fellow citizens, as well as to guard against his own misfortune, by paying into a fund from which those who are in the end unlucky may draw. This conception of social insurance has been the rationale of the great social democracies of Europe and Canada, and taxation has been the traditional—indeed the only effective—means of pooling those risks. Insurance has been the rationale, in this country, of all our great welfare programs: Social Security, Medicare, Medicaid, federal disaster relief, among many others."

Dworkin says the details of the Affordable Care Act are posed differently, but at its core it is just another "pooling of risk." And he thanks Roberts for an "unwitting" reminder of one of the fundamental characteristics of a government and of a society.
"The Chief Justice’s reasoning contains an unwitting insight. The national power to tax is not just a mechanism for financing armies and courts. It is an indispensible means of creating one nation, indivisible, with fairness for all."

On lighter note, it seems we cannot compel someone to buy broccoli, but we can tax them if they don’t.

Dworkin provides us some legal insights that are rather interesting. For example, eight of the justices at least upheld the basic concepts behind regulating interstate commerce. One did not. Clarence Thomas provided his own thoughts on the matter in a separate opinion.
"Thomas wants to repeal eight decades of constitutional law by denying what the other eight justices accept: that Congress has the power to regulate economic activity that takes place within one state but has a substantial impact on the national economy. It would have been a catastrophe had Thomas prevailed: we would have been sent back to the unregulated economy of a pre–New Deal era."

Dworkin is not a John Roberts fan. He all but accuses him, Scalia, Thomas, and Alito of being Republican Party operatives. How else to explain the decision to install George W. Bush as president? What other explanation for the decision to allow the wealthy to provide as much money as they wish in support of Republican candidates. The twisted logic used to attack the healthcare law is understandable if one has the goal of trashing Obama and helping a Republican get elected president (and create more justices just like them).

Dworkin can’t quite give credit to Roberts for, in this case, making a politically brave decision.
"Recent polls have shown that the American public has become increasingly convinced, by the drum roll of 5–4 decisions mainly reflecting a consistent ideological split, that the Supreme Court is not really a court of law but just another political institution to be accorded no more respect than other such institutions. Roberts, as chief justice, must feel threatened by this phenomenon; the chief justice is meant to be a judicial statesman as well as a judge, and it is part of his responsibility to protect the public’s respect for the Court as above politics."

Of course, Roberts must have an ulterior motive for his decision.
"He might have thought this particularly wise in view of the large number of politically charged cases scheduled for hearing in the Court’s next term, beginning in October, a month before the presidential election. The Court will have the opportunity to overrule its 2003 decision allowing state universities to take an admission candidate’s race into account, as one factor among others, in seeking a diverse student body. The conservative justices might wish to abolish affirmative action altogether, or to impose more stringent restrictions on it. They will also have the opportunity to reverse lower courts by upholding the Defense of Marriage Act, which forbids federal agencies to treat gay marriages as real, for example by allowing a gay couple to file a joint income tax return."

"The same justices will also be asked to strike down an important part of the Voting Rights Act of 1965, which requires states with particularly bad voting rights records to seek federal permission for new changes in their election laws. No doubt, moreover, they will soon find a chance further to constrict or even to abolish abortion rights. Roberts may want to blunt the anticipated accusations of political partisanship that any right-wing decisions in these cases will likely attract by supporting Obama’s health care program now."

It seems clear that the conservative justices have political opinions and these will color their legal opinions. Conservatives can target the liberal justices with the same accusation. Dworkin, in a brief, almost throwaway comment, provided a description of the philosophy that he believes motivates and informs Roberts—a philosophy that liberals will find even more dangerous than mere political bias.
"Liberty, as he might put it, always trumps necessity at the national level."

That is a rather extreme philosophy. However, it does explain why 30 million people can be denied healthcare coverage in order that one person is not compelled to purchase insurance. It also explains why democracy, as the masses have known it, can be overturned in order that one person is not forbidden to spend as much money as he wants in electing his favorite candidate.

So—individual liberty is more important than national purpose. No society has ever been based on that principle—at least none have survived long enough to have been noticed.