via Jonathan Cohn, The New Republic
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 they met 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 heart—particularly in major cases like this one.
That’s good. With the result apparently in doubt—smart money still says the chances of the full law surviving are about 50-50—Kennedy 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 premise—that 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 majorities—in 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 four—a 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 hospital—suggesting, 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.
BARACK talks of healthcare where the rich should provide more
in taxes in aid of the poor doing so results in dividing the nation
as shows the cunning as deceit of politicians as does for BARACK
BARACK plays an humane caring politician whom sides with the
poorest // thus he beeing the christ /whom crucified doing good.
The reality BARACK but a cunning deceitful individual politician
whom in seeking holding political power // would remove granny
from her wheelchair & sell it in raising more political funds for his
plitical campaign // to remain in political office for *another term.
While in office BARACK having show he is but full of hot air /every
promise made proved but hot air / every promise as made *broken.
In office / to serve his financial backers the few whom holding 80%
of nations wealth as own as control the 24/ 7 media brainwashing))
to please them he signed a bill that removed an individuals right to
an fair trial. Any individual can now be arrested / No charges made
No court appearance. // No access unto a lawyer The individual but
simply left to rot in a prison cell / being robbed of all human rights.
For such a cruel act in removing ones right to a just trial BARACK in
having shown he is the lowest of the low // he’s the most corrupt of
politicians whom blinded by political power /in willingly he having
carried out the most vilest of crimes possible / placed in an position
of trust only to abuse such trust blinded by greed of political power