How Did the Challenge to the Affordable Care Act Ever Make it...

How Did the Challenge to the Affordable Care Act Ever Make it to the U.S. Supreme Court?

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In 2009, when someone asked Nancy Pelosi a question implying that health reform legislation might be unconstitutional, she replied: “Are you serious?”

Pelosi wasn’t alone. At the outset, many legal scholars considered the challenge to the Affordable Care Act (ACA) both “implausible” and “frivolous.”

But over the next two years, the notion that state courts might strike down the ACA took on a life of its own. Most people had only a hazy idea of what was actually in the legislation; nevertheless the idea of “health reform” inspired heated rhetoric. Soon, state attorneys general and governors responded to the political opportunities, banding together to make what Slate Senior Editor Dahlia Lithwick calls, “novel arguments in the form of what was always a constitutional Hail Mary pass … It’s no accident that until the lower district courts started striking down the act, none of the challengers really believed that they could succeed.”

Yet somehow, this week, the highest court in the land is hearing oral arguments in a case that even supporters viewed as a long shot. How did this happen?

The media played a major role, fanning political passions by quoting every challenge – including the absurd claim that the bill called for “death panels.” As Rachel Maddow observed Monday night: this case was “built up as the Super Bowl of American partisan politics.” Thus, the Supreme Court was left with little choice: it had to hear “The Case of the Century.”

Why media fanned the flames

Why did reporters latch onto the story? First, the media is in the business of selling newspapers and air time. Health reform is a “hot-button” topic.

Secondly, as Linda Greenhouse explains in a scathing New York Times Op-ed: “Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale” – even when “one side of a controversy obviously lacks merit.” (This is what some call “balanced” reporting.)

“Journalistic accounts of court cases … treat the arguments on both sides with equal dignity,” explains Greenhouse, a Pulitzer Prize winner who has covered the Supreme Court for 30 years, and now teaches at Yale’s law school. “So it’s perhaps not surprising that just about half the public apparently believes that … the individual mandate is unconstitutional.” But Greenhouse comes down on the side “truth-telling” over “balance”:

“I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance … is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.”

Nevertheless the media succeeded in blowing the story up, and in two years, what constitutional experts thought was a non-story became a Supreme Court case.

Legal minds saw a ‘non-story’

Over that time, the U.S. Constitution hasn’t changed. The challenge is as thin as it was in 2010, when Charles Fried, who served as soliciter general under President Ronald Reagan, told ABC News that “anyone” who questions the constitutionality of the Affordable Care act “is either ignorant – I mean, deeply ignorant – or just grandstanding in a preposterous way. It is simply a political ploy and a pathetic one at that.”

Prominent legal scholars also spoke out: “States can no more nullify a federal law like this than they could nullify the civil rights laws” said Timothy Stoltzfus Jost, a health law expert at Washington & Lee University School of Law.  Mark A. Hall, a law professor at Wake Forest agreed: “There is no way this challenge will succeed in court,” adding that the cases brought by the states seem “sort of an act of defiance, a form of civil disobedience if you will.” In other words, this was a Tea Party demonstration.

Initially, reform’s opponents lost in two state courts where judges appointed by Democrats ruled against them. They also lost their first case in an Appeals Court where Laurence Silberman, a conservative Reagan appointee who is regarded as a serious constitutional scholar, concluded that there is “no textual support” in the constitution “that mandating the purchase of health insurance is unconstitutional.

But other Republican judges sided with the challengers – most importantly in Florida, where that state and 26 partner states won. The mandate was no longer a Tea Party talking point; it had become an issue that Congressional Republicans took seriously.

This was not always the case. Until very recently, scholars who specialize in the history of health reform explain, the proposition that “it is wrong to allow people who can afford insurance to shift the cost of their care to others by refusing to provide responsibly for their future health needs” enjoyed “broad bi-partisan support … Indeed, ten current Republican Senators who now oppose the minimum coverage requirement as unconstitutional previously sponsored or cosponsored legislation that included an individual mandate.”

‘No free riders’ means everyone must pay

Republicans, like Democrats understood that at some point in time, virtually everyone will need health care. If we don’t want to let “free riders” impose the cost of their care on all of us, we must ask everyone to buy coverage.

Yesterday, Chief Justice John Roberts asked if the government has the power to require that everyone buy a cell phone. The answer is “No,” because cell phones are not a necessity. If someone doesn’t have one, the rest of us don’t feel obliged to buy one for him. But health care is a necessity. And in our society, we are not inclined to leave people to bleed to death on the sidewalk because they didn’t buy insurance.

It is only recently, as healthcare reform became “Obamacare,” that conservatives have disavowed a mandate they once embraced. In other words, it seems that they are objecting, not to the idea everyone who can afford it should purchase insurance, but rather to the fact that President Obama has succeeded in doing what so many past presidents have tried and failed to do.

Could it be that this debate is really not about the Constitution, but instead, about what Senate Minority Leader Mitch McConnell has called Republicans’ “number one goal” – to get Obama out of the White House?

That said, I remain extremely hopeful that when the justices hand down a decision in June, they will act as officers of the court, not as politicians.

Maggie Mahar is an author and financial journalist who has written extensively about the American health care system. Her book, Money-Driven Medicine: The Real Reason Health Care Costs So Much, was the inspiration for the documentary, Money Driven Medicine. She is a prolific blogger, writing most recently for TIME’s Moneyland. Previously she wrote and edited the Health Beat blog for the progressive think tank, The Century Foundation. Previous work for the Health Insurance Resource Center includes Will the Supreme Court strike down health reform? She also recently provided background on Congressional health care legislation for HealthReformVotes.org, a special project of the Health Insurance Resource Center. This post first appeared at healthinsurance.org

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77 Comments on "How Did the Challenge to the Affordable Care Act Ever Make it to the U.S. Supreme Court?"


Guest
Mar 29, 2012

“And in our society, we are not inclined to leave people to bleed to death on the sidewalk because they didn’t buy insurance.”
__

But, as Scalia coldly noted during Orals, we could change that.

Guest
Mar 29, 2012

Not only do most people (including the SC justices) have no idea what’s actually in the law, they don’t even know how long it is. The actual approved PPACA is 906 pages…and yet reporters and critics continue to Google and repeat each other that the law is 2000, 2400, or 2700 pages – various draft lengths that make for a big fat incendiary number. Justice Scalia quoted the third option – 2700 pages – just in case any of us think the Court is reading and analyzing the actual law, rather than the inflammatory news coverage of it.

Guest
Mar 29, 2012

I’ve been saying that all along. I have my 906 page PDF copy. I refer to it often.

“Why Do Humans Reason?” (Sperber / Mercier)

To prevail, not to get at anything approaching “truth.”

btw, JD, I have you to thank for the debunkery quip that HIPAA was not in fact legislated to “protect patient privacy.” 13 out of 167 pages, inserted at the relative 11th hour.

Guest
Mar 29, 2012

Scalia is an embarrassment. By making reference to 2700 pages plus that Cornhusker reference he really tipped his hand as the least intellectually curious member of the Court. That plus the ever-mute Justice Thomas (whose wife is up to her bonnet in super-Conservative political causes) and that end of the politics of the Court stands naked. Of the truly “Conservative” block, only Alito and Roberts retain any integrity in my view.

Guest
Mar 29, 2012

Interesting comment I saw elsewhere:
__

“There’s an Alice-In-Wonderland aspect to this debate since the politics of the individual mandate intimately intersect with the political careers of this year’s presidential nominees. One candidate even pretends his pioneering role is somehow irrelevant because of the 10th Amendment or some other rhetorical sleight of hand.

Supreme Court justices are political animals and they’re more than willing to take precedents and cast them overboard if it furthers their own activist desires (e.g., Citizens United). If this case were decided purely on the basis of stare decisis, there would be no question about the legality of the mandate. But it’s being decided in a political arena, one where the actors wear black robes and over their campaign buttons.

The ideological question that is the central to our government is whether the Constitution should reflect the country of the 21st century or the 18th century. Thomas and Scalia are more than willing to turn back the clock to an agrarian republic where simplicity ruled the lives of citizens. Today, it’s complexity that rules, mostly because of industrialization and economic stratification, and as a result of that, a citizenry ruled by economic forces the Founding Fathers couldn’t foresee. A Constitution that doesn’t reflect the physical reality of this republic is a straitjacket. And a jurisprudence that indulges nostalgic daydreams of yeoman farmers and town halls is probably closer to nihilism than virtue.”

– Walter Hall

Guest
Mar 29, 2012

Wow – Walter Hall nails it!

Guest
Mar 29, 2012

“A Constitution that doesn’t reflect the physical reality of this republic is a straitjacket.”

Money quote

Guest
Nate Ogden
Mar 29, 2012

“The answer is “No,” because cell phones are not a necessity. If someone doesn’t have one, the rest of us don’t feel obliged to buy one for him.”

In 2008, the fund that foots the bill for this program contributed $819 million to subsidize low-income telephone services.

Ok maggie then why are tax payers spending 1 billion a year to provide them?

“But health care is a necessity.”

Then manadate healthcare, health insurance is not a necessity.

Mark Hall is a liberal propogandist that doesn’t know anything about insurance. He provides media folks with quotes they want to hear and is wrong far more then he is right. See his laughable quote in the LA Times story on small group self funding.

Not a single person you quote is qualified to be making the arguments they are.

“Secondly, as Linda Greenhouse explains in a scathing New York Times Op-ed: “Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale”

To bad Journalism has been dead for 20 years. This never happens and no one with half a brain believes it exist today.

What your post really boils down to is a bunch of liberals made bad predictions and are now trying to save face.

Guest
MD as HELL
Mar 29, 2012

Time to just see what happens. No wonder all the old crowd has stopped commenting here. They probably look in now and then, but what is the point? This is no longer relevant.

Guest
Mar 29, 2012

Thanks for the comments–

Bobby G– Yes, Scalia’s public statment that no one could expect him to read so many pages was extraordinary One wonders how he got through law school.

And I’m afraid that he would be wiilling to let people bleed to death.

J.D.– Yes, it is amazing how many reporters have made no effort to read the bill, and so have no idea how long it its.
I understand that today’s reporters are expected to produce stories under tighter and tighter deadlines.

But online it is very easy to call up the legislation and use “search” to
check out what the document actually says about various topics. Rather than spending time Googling and reading what others have said ( a thick porridge of misinformation, half-truths and good information) a jouranlist might better spend an hour or so “searching” the bill itself.

John– I have hopes that Roberts — and perhaps one or two others–will step across party lines because they care about the court’s legacy and don’t want to seen as simply voting their poitics. I’ve written about this here:
http://www.healthinsurance.org/blog/2012/03/26/will-the-supreme-court-strike-down-health-reform/

Many saw the Gore decision as political; this hurt the Court’s reputatoin for neutrality. I think that, as chief justice, Roberts worries about this. In addition, if the court strikes down the most important piece of legislation that Congress has passed in 47 years, it will take us to the brink of a
constitutional crisis. At a time when the nation is polarized, and the economy is in shambles, I doubt the Court would want to take reponsiblty for brining us to that point.

IF the majoirty of U.S. citizens object to health reform, they have the power to vote Obama out of office, and give majority power to Republicans in both the House and the Senate. They would surely repeal the legislation.

This is the way our system is supposed to work. The Court is not supposed to re-write legilslation passed by our elected representatives.
If we decide that we regret electing them, we, the peopple, have the right to elect new representatives who will undo what they have done.

Bobby G– You’re certainly right that the current political circus seems to have infectred the court. But I’m hoping that at least 5 of the Justices don’t want to be seen as enaged in a charade– wearing black robes over their campaign buttons. See http://www.healthinsurance.org/blog/2012/03/26/will-the-supreme-court-strike-down-health-reform/

If enough editorialists and pundits in the mainstream press express outrage over the possiblity that the Supreme Court will vote stictly along partisan lines, this could make a difference. Most Supreme Court justicies do care about how they go down in history. They want to be seen as constitutional scholars, not poitical hacks.

Nate–You are talking about the Washington Telephone Assistance Program: Let me quote from the fact sheet on the program: “WTAP does NOT pay for cell phones” .http://www.dshs.wa.gov/wtap.shtml

A cell phone is not a necessity. Having a phone in your home is a necessity: if your house is on fire and you need to call the fire department; or if someone has a heart attack and you you need to call an ambulance; or if a baby stops breathing;. or if someone is breaking into your apt. and you need to call the police. (Maybe you could go to a neighbor’s house to call– if they have a phone and will let you in in the middle of the night –not always the case in poor, tough neighborhoods. . Meanwhile, you waste precious minutes.))..

WTAP pays for half of a connection fee up to $22, and provides unlimited local service for $8 a month plus taxes for very poor families.

Guest
Nate Ogden
Mar 29, 2012

Yes, Scalia’s public statment that no one could expect him to read so many pages was extraordinary One wonders how he got through law school.

You mean his joke about the 8th amendment and reading ppaca would be cruel and unusual punishment?

Get a life

Guest
Nate Ogden
Mar 29, 2012

“Politico: “Mr. Kneedler, what happened to the Eighth Amendment?” Scalia asked — a joking reference to the Constitution’s prohibition on cruel and unusual punishment. “You really want us to go through these 2,700 pages?”

What were you yapping on about truth in reporting? Then you turn around and distort a statement for cheap political points. Be a little more hypocritical Maggie.

Guest
Nate Ogden
Mar 29, 2012

“Nate–You are talking about the Washington Telephone Assistance Program:”

No Maggie I am not. Little common sense, how could WA spend 1 billion on phones by itself?

http://www.forbes.com/sites/kellyphillipserb/2012/02/12/are-taxpayers-paying-for-free-cell-phones/

Federal Programs Lifeline and Linkup paid out of Universal Service fund.

You know as little about this as you do healthcare.

Here is the bill to end it;

11/18/2011–Introduced.Stop Taxpayer Funded Cell Phones Act of 2011 – Prohibits a provider of commercial mobile communications service from receiving universal service support under specified provisions of the Communications Act of 1934 for the provision of such service through the Federal Communications Commission’s (FCC) Lifeline program (a program that provides discounts on monthly telephone service to qualifying low-income consumers).

So Maggie why would Rep from AR, FL, LA be sponsoring bills in WA?

“A cell phone is not a necessity.”

Then why are taxpayors being forced to pay for them?

$9 birth control isn’t a necessity but they are getting stuck with that bill as well.

Guest
Nate Ogden
Mar 29, 2012

“The Court is not supposed to re-write legilslation passed by our elected representatives.”

Does that apply to aborition as well? Gay rights? Gun laws?

What your really saying is the Court is not supposed to re-write legislation passed by elected democrats, we should have stacked the court when FDR had the chance.

Guest
Mar 29, 2012

Water Hall writes: “a jurisprudence that indulges nostalgic daydreams of yeoman farmers and town halls is probably closer to nihilism than virtue.”
Yes.

Guest
rbaer
Mar 29, 2012

If the Supreme court discussion is not a reflexion of both destructive partisanship and judicial activism, then what is?

Guest
DeterminedMD
Mar 29, 2012

The sheer audacity to challenge Democrats and their agenda. Just like how it played out with the Republicans and the Iraqi invasion.

One party rule is not democracy but tyranny pathetically disguised as representation. And no surprise to read Ms Mahar ask the question.

At least she reads the accompanying thread.

Guest
Mar 29, 2012

Nate– Sorry, I was confused because you seemed to indicate it was a 2008 law– and that led me to the Washington law.

Here is the law you are referring to. (I’m quoting from the Forbes article that you cited in your second comment):

“The federal program dates back to 1996; it was part of the Telecommunications Act of 1996. that subsidized coverage for families who can’t afford it so that they have links to emergency and government services”

So this is a law that helps low-income customers have access to necessary,
“basic telephone service”” (Forbes desription.) Forbes adds:. It’s divided into two programs: Link-Up America and Lifeline.

Link-Up assists consumers with the installation costs of phone service. The program pays up to $30 of the cost of installation and up to $200 in the form of a one year, interest-free loan for additional installation costs.

Lifeline provides discounts on basic monthly service at a primary residence for qualified telephone customers. These discounts can be up to $10.00 per month, or more for certain Native Americans. Generally, to qualify, your income must be at or below 135% of the federal poverty guidelines (these vary by location and size of family but for comparison, rings in at $22,350 for a family of four in the lower 48).

******NOTE:” In some instances, coverage may include discounts for cell phone service instead of land lines at primary residences because realistically, cell phone service is less expensive in some areas than traditional service” (Nate, why did you leave that part out?)

In other words, low-income families are getting cell phones only if they are cheaper than basic service. We are not talking about fancy phones.

Guest
Nate Ogden
Mar 29, 2012

nice try spinning there.

Your words;

““No,” because cell phones are not a necessity. If someone doesn’t have one, the rest of us don’t feel obliged to buy one for him.”

Which is it Maggie are we obliged or aren’t we? Your latest story appears to be we do feel obliged when the cell phone is cheaper then a land phone. I don’t see you qualifying your original statement for how fancy the phones are. You said very clearly the rest of us don’t feel obliged to buy one for them.

Maybe we don’t feel obliged but we sure are obligated by the federal government. Just like they are trying to obligate is to buy insurance for other people.

You were wrong, once again, I corrected you once again, just admit you were running at the mouth as usual and have no idea what your talking about.

We do buy poor people cell phones, period.

Guest
rbaer
Mar 29, 2012

What’s the big deal about that? Even if supporting cell phones for poor people is ludicrous (there are several common sense ideas that come into mind, although I am not saying I am in favour of the idea), that policy has not much to do with other, unrelated policies that are discussed here. This argument does not even deserve a response in the first place, although it obviously makes you proud.

Guest
spike
Mar 30, 2012

Nate is just trying to catch Maggie in a lie so he can keep playing the victim.

The spirit of Maggie’s statement was 100% true, the letter was 99% true because she failed to mention that when cell phones are cheaper than land lines, the government would rather sponsor cell phones.

Imagine the outcry from Nate if the government was only supporting landlines even in markets where landlines were double the cost of cell phones.

It has nothing to do with anything except Nate trying to find any way possible to criticize something he probably knows is correct but is also unpalatable to him.

Guest
Nate Ogden
Mar 30, 2012

why do we provide landline? My concern is not about the realtive cost of one to the other we should not be providing either.

And your both still wrong in claiming we only provide them when they are cheaper then landline, that is not a condition in most states.

How to Qualify
The process to qualify for Lifeline Service depends on the State you live in. In general, you may qualify if…

1.You already participate in other State or Federal assistance program such as Federal Public Housing Assistance, Food Stamps and Medicaid.
OR
2.Your total household income is at or below 135% of the poverty guidelines set by your State and/or the Federal Government.
AND
3.No one in your household currently receives Lifeline Service through another phone carrier.
4.You have a valid United States Postal Address. In order for us to ship you your free phone you must live at a residence that can receive mail from the US Post Office. Sorry, but P.O. Boxes cannot be accepted.

Do you see anything about landline cost?

And like all well written liberal welfare plans;

http://www.cbsatlanta.com/story/17048072/your-money-wasted-fraud-in-free-cell-phone-program

But CBS Atlanta News found multiple phones being given away to people who already had a free phone, and to people who don’t need them or even want them. And the more phones these companies give away, the more money you pay.

“I signed up for two already, I got like two of them,” one woman said.

The woman was in line to get her third free phone. In some cases, the people lining up for free phones admitted they already had three or four government-supported phones.

The women are just a few of hundreds of people who received phones in the mail, even though they didn’t qualify for the federal government’s LifeLine program.

Guest
pcb
Mar 29, 2012

reasonable people can disagree about the constitutionality of the individual mandate.
To imply that those who disagree with you on the issue are hopelessly partisan is unreasonable, Maggie.

You’re better than this.

Guest
louisdous
Mar 29, 2012

Please provide supporting documentation or refrences. I read only the posts under her name. Does she have a nom de plume?

Guest
MD as HELL
Mar 29, 2012

No , she is not.

Guest
Priscilla Chism
Mar 29, 2012

Could hardly say it better myself!

Moment of truth for Justice Roberts
By: Jeffrey Rosen Politico
March 28, 2012 10:27 PM EDT

Before this week’s historic Supreme Court argument, conventional wisdom held that the court would uphold “Obamacare” — as its opponents call it — by a lopsided bipartisan margin. In one recent poll, Supreme Court lawyers and former Supreme Court clerks said there was only a 35 percent chance that the court would strike down the law.

After the bruising oral argument Tuesday, however, when all the conservative justices seemed to express skepticism about the constitutionality of the health care mandate, conventional wisdom shifted: “Obamacare” is dead!

If the court does, in fact, strike down the mandate by a 5-4 vote, conventional wisdom most likely will crystallize around a new narrative: The Supreme Court is all about politics.

Ever since Bush v. Gore, Democrats will argue, conservative Supreme Court justices have voted their partisan interests. The health care decision, combined with the Citizens United case, striking down campaign finance reform, only clinches the argument.

But is that narrative right? What is the relationship between decisions and the justices’ political preferences? The truth is that this relationship is more complicated than the new conventional wisdom suggests. Though broad currents of public opinion can influence the court, it’s only in exceptionally divisive cases that some justices seem guided by political instincts rather than their judicial philosophies.

There’s no question that the conservative justices on the Roberts court have political leeway to strike down Obamacare because of its current unpopularity. According to a New York Times poll, two-thirds of Americans think the Supreme Court should strike down all or some of the health care law — even though majorities support some of its most important provisions.

But if the conservative justices are careful students of history, they won’t strike down the mandate. History shows that the court gets into trouble when it strikes down national legislation on the basis of constitutional principles that majorities of the country intensely dispute. And only about 30 percent of Americans now think the court should overturn the mandate that everyone has to buy health insurance.

Over the course of U.S. history, the court has indeed followed the broad currents of public opinion more often than not. For example, the 1954 Brown v. Board of Education decision, striking down school segregation, was popular with 54 percent of the country.

But on the relatively rare occasions when the court has invalidated laws popular with national majorities – like the Citizens United decision, which 80 percent of the country opposed — its decisions have provoked political backlashes often followed by a drop in the court’s public legitimacy.

The Roberts court justices are doubtless aware of the post-Citizens United public backlash. When the court began its term in October, according to the latest Gallup Poll, public approval of the court was at 46 percent, 15 points lower than just two years ago, before Citizens United was decided.

Yet despite the famous aphorism of the fictional Mr. Dooley, few people believe the Supreme Court “follows the election returns” in the crude sense of reading public opinion polls. Instead, the justices seem influenced by public opinion in a far more subtle way. In cases where the justices have strong political preconceptions that they share with large segments of the public, they seem more likely to betray the judicial philosophies they have emphasized in less controversial cases.

Consider Justice Antonin Scalia’s position in Bush v. Gore. Scalia has devoted his judicial career to the proposition that judges should decide cases based on the text and original understanding of the Constitution. Unless the document’s text clearly spoke to an issue, Scalia believes, judges should allow issues to be resolved by the political branches.

In Bush v. Gore, however, Scalia reached the opposite conclusion. He endorsed a novel right to the equal treatment of ballots that was unequivocally inconsistent with the intention of the framers and supporters of the 14th Amendment, who believed that voting rights weren’t covered by the amendment and wanted to exclude judges entirely from deciding presidential elections.

When pressed to justify this apparent inconsistency, Scalia first said the court needed to reach a pragmatic decision to avoid political chaos. Then, when challenged further, Scalia exclaimed that critics should “get over it.”

Or consider Scalia’s apparent skepticism of the health care mandate during Tuesday’s oral argument. He has previously embraced a broad vision of congressional power that would seem comfortably to authorize the health care mandate. In 2004, he wrote a 6-3 opinion for the majority, saying Congress could prevent California from allowing people to grow marijuana for their own medicinal use — because this might affect the interstate market for pot.

Before the Tuesday oral arguments, many observers said Scalia would very likely vote to uphold the health care mandate — because the decision not to buy health insurance has a far greater impact on the economy. During the argument, however, Scalia seemed relentlessly skeptical of the mandate.

If he does vote to strike it down, Scalia will doubtless convince himself that his vote is consistent with his previously expressed constitutional principles. But, as in Bush v. Gore, Americans who don’t share his political convictions will have a hard time believing him.

When I teach constitutional law, I always start by telling students: Don’t assume the Supreme Court is all about politics. If that’s the way you view constitutional cases, you’ll miss everything that’s constraining, and exciting, about constitutional law — which often does press judges to separate their political convictions from their constitutional conclusions.

But the truth is that there are a handful of cases — like Bush v. Gore — that are hard to justify in anything but political terms. Sometimes, justices have such intense political convictions that they seem unable to restrain themselves. My hopeful account of these cases is that they are exceptions that prove the rule.

But I also hope that the health care lawsuit isn’t another of those exceptions. When Chief Justice John Roberts began his tenure, he said he wanted to be remembered for presiding over a court that reached narrow unanimous opinions — transcending the partisan divisions that have polarized Washington in Congress and the executive branch.

So far, Roberts has had mixed success.

That’s what makes the health care cases a moment of truth for the chief justice. If Roberts presides over a court that strikes down health care reform by a 5-4 vote, his ambition of transcending politics on the Supreme Court will have to be judged a failure.

If, by contrast, Roberts can find a way of helping his conservative colleagues to overcome their political convictions and uphold health care reform on narrow grounds, even his critics will have to admit that he has achieved a real success.

Uniter or divider — the choice is his.

Jeffrey Rosen, a law professor at The George Washington University, is the legal affairs editor of the New Republic and co-editor of Constitution 3.0: Freedom and Technological Change.

© 2012 POLITICO LLC

Guest
Mar 29, 2012

“Scalia has devoted his judicial career to the proposition that judges should decide cases based on the text and original understanding of the Constitution.”
__

a.k.a. The Ouija Board Theory of Jurisprudence.

Guest
Mar 29, 2012

Priscilla & PCB

Thanks very much for sending Rosen’s piece. It is, as you suggest, excellent.

I think we should all pay much more attentnoin to what law professors and legal scholars tells us about what
the constitution actually says, and how it relates to the health reform legislation.

Of course, they don’t all agree. But if you read enough Law Review articles, and comments by those who actually study the constitution, it seems clear that the majority don’t believe that the constitution provides a basis for overturning the law. This includes politically conservative legal scholars.

I really do think that Roberts cares about the integrity of the court.

As Rosen points out: “But on the relatively rare occasions when the court has invalidated laws popular with national majorities – like the Citizens United decision, which 80 percent of the country opposed — its decisions have provoked political backlashes often followed by a drop in the court’s public legitimacy.

“The Roberts court justices are doubtless aware of the post-Citizens United public backlash. When the court began its term in October, according to the latest Gallup Poll, public approval of the court was at 46 percent, 15 points lower than just two years ago, before Citizens United was decided
.. . .
“When Chief Justice John Roberts began his tenure, he said he wanted to be remembered for presiding over a court that reached narrow unanimous opinions — transcending the partisan divisions that have polarized Washington in Congress and the executive branch.

“So far, Roberts has had mixed success.

“That’s what makes the health care cases a moment of truth for the chief justice. If Roberts presides over a court that strikes down health care reform by a 5-4 vote, his ambition of transcending politics on the Supreme Court will have to be judged a failure.

“If, by contrast, Roberts can find a way of helping his conservative colleagues to overcome their political convictions and uphold health care reform on narrow grounds, even his critics will have to admit that he has achieved a real success . ..”

PCB–

As I indicate in my reply to Priscilla, I am basing my view that the constitution does not support the challenge after reading a great many legal arguments written by constiutional scholars who have spent their lives studying and teaching the constitution.

The majoirty view is that if the judges strike down the law they will be voting their politics, not the constitution.

I respect the expertise of people who have studied something in depth., and
I would add that highlly respected conservative judges agree. As The Economist (haredly a liberal rag) points out: “just a few weeks ago there were quite a few conservative legal scholars who believed the court would confirm the law’s constitutionality by a wide margin.” http://www.economist.com/blogs/democracyinamerica/2012/03/obamacare-and-supreme-court-0

At this point, the subject has become politicized, but the constitution itself hasn’t changed in the past few weeks.

Guest
Nate Ogden
Mar 29, 2012

Is the court suppose to follow the constitution or popular sentiment as portrayed by the liberal media? Their job is not to sway with public opinion but to uphold our laws. Regardless of what the public thinks the facts don’t change.

“I think we should all pay much more attentnoin to what law professors and legal scholars tells us”

Why because the vast majority of them are liberal and agree with you? Why would I care what some law professor or legal scholar in their ivory tower says? I can read the Constitution myself, I don’t need their biased guidence on what I am supposed to think.

What your asking is for all the common folks to stop thinking for themselves and do what they are told by those who supposedly know what is best for them. No thanks.

““If, by contrast, Roberts can find a way of helping his conservative colleagues to overcome their political convictions and uphold health care reform on narrow grounds, even his critics will have to admit that he has achieved a real success”

Better yet, if we he could the 4 liberal justices to put down their political blinders and vote with the public and the conservatives and strike it all down he would not only have acheived success but pleased the majority at large. Funny how the liberals changing their vote is never an option, why is that Maggie? Why do conservatives always have to defer to the liberal agenda?

Guest
steve
Mar 29, 2012

It is necessary and proper that you read the Constitution yourself.

Steve

Guest
Mar 29, 2012

“I can read the Constitution myself”
__

You just don’t get to impose YOUR interpretation of it on everyone else. Not jour job.

“Why do conservatives always have to defer to the liberal agenda?”

Like they did, uh, in Citizens United?

Guest
Peter
Mar 29, 2012

I wonder if you think someone in power will read this swill and be swayed by your argument?