In October 2009, a reporter from something called the Cybercast News Service – a strange outfit run by the same people who put a giant ad in New York’s Times Square screaming “Don’t Believe the Liberal Media!” – asked Nancy Pelosi a question about the pending healthcare legislation. “Madam Speaker,” he asked, “where specifically does the constitution grant Congress the authority to enact an individual health insurance mandate?” The then-speaker couldn’t believe it. “Are you serious? Are you serious?” she asked, and laughed the guy out of the room.
That was about the reaction most serious conservative legal scholars had, too, when a few outliers groused that Congress had no right to require Americans to obtain healthcare. Their disapproval often went hand in hand with the strange constitution-worship of those early Tea Party days, complete with tricorn hats, irrational defenses of states’ rights, and, not incidentally, a bit of uncertainty about the president’s birth certificate. Within Congress, where Republicans led by Charles Grassley tried for months to forge a bipartisan deal, nobody except a few crusaders, among them Michele Bachmann and Jim DeMint, ever proposed that the Affordable Care Act would contravene the rules of the road.
But here we are, not three years later, and the signal accomplishment of Barack Obama’s presidency could be headed for the rubbish heap – by order not of the lawmakers, but of the supreme court. The sun is shining, the capital’s cherry blossoms are in bloom, but outside the courthouse people stood in line (or paid others to do so) for so long you’d think a new iPad was being released. It’s the biggest show in a tiny town, and the justices know they’re being watched. Otherwise, they would never have scheduled three days of oral arguments – the longest parley the court has permitted in nearly half a century.
Monday is for completists only, but could be revealing: the justices will go through some procedural arguments to determine whether they should rule on the act’s constitutionality now or wait until its central planks comes into force in 2014. Though the debate will be dry – it hinges on the Anti-Injunction Act, an arcane piece of tax law from the 1860s – the circumstances of the argument certainly aren’t. Neither the administration nor the law’s opponents claim that the court can’t rule yet; instead, it was the justices themselves who introduced this so-called “orphan argument” and appointed a hotshot DC attorney to make the case. If the justices decide they want to duck the whole issue, we may get a hint Monday.
The real red meat doesn’t come until Tuesday, when the justices will consider whether the “individual mandate”, or the requirement that Americans buy healthcare, falls under the commerce clause. That provision, in Article 1 of the constitution, lets Congress make laws that “regulate Commerce … among the several States,” and it is one of the most fundamental powers assigned to the legislature. The galling justification of the Obamacare opponents is that the mandate impermissibly forces the uninsured to “enter into commerce” – as if the 50 million Americans with no health insurance had never participated in a $2tn industry and were all living in Unabomber-like isolation. Two judges in Atlanta endorsed this argument (in a decision that cited the actual Boston Tea Party), but several conservative appellate judges, including a former clerk for Justice Antonin Scalia, were not convinced.
Wednesday is another technical day, hinging partly on states’ participation in Medicaid, but also on whether the court can strike down the individual mandate and leave the rest of the act intact, or whether they have to take it all or nothing.
What this supposed case of the century really amounts to is a political grudge dressed up as a meritless constitutional challenge, and a reminder that a tradition of conservatism that believed in judicial restraint has been superseded by one willing to use the courts to torpedo anything they don’t like. Calling the individual mandate unconstitutional is ridiculous on its face – but it’s even more so when you remember that the Heritage Foundation touted it as an ideal free-market solution to the healthcare crisis back in the 1980s, that it had Newt Gingrich’s backing as recently as the last election cycle, and that poor Mitt Romney signed a nearly identical program into law as governor of Massachusetts. This is not a legal argument; this is a ploy.
And there’s good reason to believe that even this court, with its clear conservative majority, is not going to strike down the most important domestic legislation since the civil rights movement on such flimsy grounds. To be clear, the only reason that this case has a chance of ending with a defeat for the White House is because of the 2006 retirement of Sandra Day O’Connor, and the lurch to the right the court has undergone since her departure. Like nowhere else, the presidency of George W Bush endures in the quiet work of the smiling John Roberts and the scowling Sam Alito, to say nothing of the 62 judges Bush placed on the appellate benches, many of them relatively young and fire-breathing.
But unlike Clarence Thomas, who’ll certainly vote to kill Obamacare and maybe a few decades’ worth of earlier rulings besides, Roberts is neither indifferent to precedent nor deaf to public skepticism about the court’s impartiality. He certainly isn’t the minimalist “umpire” he claimed to be at his 2005 confirmation hearing. None of us, during this first Citizens United election, can still believe that now.
But Roberts, as well as Anthony Kennedy, knows that the court has never recovered from the disgrace of Bush v Gore 12 years ago. John Paul Stevens wrote in his dissent that that case would destroy “the Nation’s confidence in the judge as an impartial guardian of the rule of law”, and he was right. According to a poll this month, fully three out of four Americans think the justices’ political views will determine their decision in this case.
John Roberts surely wants to see the president lose this election as much as any establishment conservative, but it may be the election of 2000, rather than 2012, that really forces the chief justice’s hand. Whether he believes the zany arguments of the act’s opponents have worth is not the central question – because, to be frank, he has more to lose than Barack Obama, if he strikes it down. Obama may get a second chance, but for Roberts, the entire legitimacy of his court is as stake.
I wouldn’t go before a “death panel” to say so, but it seems a safe bet that Roberts and Kennedy will back the administration, if on narrow terms. But in the unlikely event that the justices kill part or all of the Affordable Care Act, it will at least remind us of one unspoken issue in this presidential race: that when we choose a president for four years, we’re also getting supreme court justices for decades more.
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