ROBERT SHRUM
The court's conservative wing appears ready to engage in some despicable judicial activism on ObamaCare. Politically, at least, the justices are doing Obama a favor
Will a Tea Party Supreme Court guarantee Obama a second term?
POSTED ON MARCH 30, 2012, AT 9:45 AM
Recall the scorn toward health reform dripping from the lips of Injustice Antonin Scalia. Or think of the tight-lipped Clarence Thomas, who could send a mannequin to sit in his place at the court's oral arguments for all the difference his brooding presence makes. Along with the more plausibly judicious Samuel Alito, he too had more than likely made his decision. And so on the nation's highest court, satire replaced stare decisis in a slightly altered version of the Red Queen's jurisprudence in Alice in Wonderland: First the verdict, then the trial.
Some observers, and administration officials, hold out hope that Chief Justice John Roberts and Justice Anthony Kennedy will decide to save health reform from the revanchist claims of right-wing constitutionalism. I'm pessimistic because I lived through Bush v. Gore, when the court acted like a political ward committee, stopping the vote count in Florida to hand the presidency to George W. Bush by the margin of a single judicial vote.
A politically infected court could produce a politically unexpected result, strengthening Obama and weakening Romney and the Republicans.
Now comes the historic decision on health reform — which could reach far beyond the case to fray the whole fabric of progress in modern America. To overturn the individual mandate, to throw out all or most of the rest of the law, would be an act of naked judicial activism, which conservatives profess to despise. In truth, though, they practice it vigorously, in barely concealed disguise, when it advances their own ends. Depending on the "reasoning" rationalized by five horsemen of the judicial right, they could jeopardize other basic protections — for example, the prohibition against segregation at distinctly local enterprises like lunch counters, a prohibition that depends on a generous and long-prevailing view of federal regulation of interstate commerce.
An over-reaching court could shatter the vestigial credibility of an institution defaced by Bush v. Gore and by Citizens United — which incredibly held that there is insufficient evidence that money corrupts politics and thereby loosed a tide of special interest cash that is engulfing the politics of 2012. The opponents of ObamaCare, congregated and clamoring on the steps of the court, demanded a judicial killing of the law on the grounds that it is unpopular. In fact, as the pollster Mark Mehlman has demonstrated, the margins here are "rather shaky" and some surveys "even suggest that more Americans now favor than oppose the reform." In any event, it is emphatically not the province of the judicial branch to follow the polls rather than precedent.
But those Tea Party protesters outside may be matched by a Tea Party Supreme Court inside. And such a court is almost certainly the only means to the destruction of health reform. As and if more of the law's provisions take effect — when Americans realize that there are no death panels, no rationing, no cuts in Medicare services — and when more of the law's benefits kick in, it will be politically toxic for any president or Congress to attempt to repeal. Indeed, living with Medicare — with seniors staying healthy and alive because of it — is what secured its status as an overwhelmingly popular federal program once it was operational. And this year, Republicans will taste the political toxicity of their own reckless proposal to privatize the program.
Largely missing from the coverage of the health reform case are the most important consequences of nullifying the law: The tragedy of tens of millions who would again be left without insurance; the plight of young adults now on their parents' policies who would be thrown off; the desperation of those with pre-existing conditions who would be left with no coverage and nowhere to turn; the agony of patients who, because of lifetime limits on their insurance, would see it canceled just before the next round of chemotherapy.
It took a hundred years to remedy all of this by passing health reform; it could take decades to pass it again if and after a changed Supreme Court reversed an ideologically driven denial of health care as a fundamental human right and not just another product in the market place.
Of course, the court could split the difference, voiding the mandate while validating other elements of the legislation. But to retain provisions like the one on pre-existing conditions would trigger an explosion in insurance premiums if people weren't required to buy coverage and could just wait for it until they were already ill. This may be the unlikeliest outcome of all. Both Roberts and Kennedy appeared inclined, in the absence of the individual mandate, to function as a super-legislature and dispense with the entire bill. During the argument, the Obama administration gave limited support to that notion — that some parts of the law simply can't be sustained without a mandate.
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