Awaiting Judgment

By James Van Vliet

More than the constitutionality of the Affordable Care Act is at stake in the awaited decision of the Supreme Court. As with all momentous decisions, this one will enable the public to again judge the Court as an institution. That judgment, in the words of Justice Stevens in his dissenting opinion in Bush v. Gore, has to do with “… the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Judging the institution again at this time will have added importance. This is because in recent years there have been a series of very important, extremely controversial decisions, all by a sharply divided Court always dividing along familiar lines, that have already caused many to regard the Court as functioning ideologically rather than judicially and acting as partisan as the other branches of government.

Before reviewing the earlier decisions, a threshold issue bearing on the Affordable Care Act case deserves special attention. So far the Court has simply ignored the basic question why the justices are not subject to the same rules for disqualification in a given case that apply to all judges in the lower courts in the federal judicial system.

This question is especially important now because, based upon fragmentary information already publicly disclosed, at least one justice (Thomas), possibly another (Scalia), and maybe upon investigation even more, might be disqualified to judge the Affordable Care Act if the same rules were applied to the justices.

The series of controversial decisions began in 2000 with Bush v. Gore, a case that arose from a controversy about the counting of the votes cast in Florida in the 2000 presidential election. The initial tally showed G. W. Bush to have won the state by a very narrow margin. By the time the matter reached the Supreme Court, a manual recount was in progress in Florida which the Court promptly stayed pending its decision on the merits of the case.

The Court’s subsequent decision on the merits (by a 5 to 4 majority) held that the manual recount violated the Equal Protection Clause of the 14th Amendment to the Constitution because of a lack of consistent standards in the various places where the recount had been conducted. The decision went on to accept the initial vote tally, awarding Florida, and thus the presidency, to G. W. Bush, even though the initial tally had been proved inaccurate by the aborted manual recount. A crisis was averted largely because candidate Gore acquiesced in the Court’s decision. Nevertheless, the decision left many believing that the Court had dealt unfairly with the issues and that the decision was nothing more than an expression of political preference.

It wasn’t until 2008 that the second of the highly controversial decisions was handed down in Heller v. District of Columbia. This case concerned so called “gun rights” under the Second Amendment to the Constitution. Previous decisions by the Court (when differently composed) indicated that the Second Amendment protected only gun rights that are related to militia service. In Heller, the opinion for the majority (written by Justice Scalia) set aside those precedents on the grounds that the issue in the present case had not been not been properly considered in the earlier decisions.

The opinion then examined the history of the militia in England and in effect concluded that “Militia” and “the people,” as used in the Second Amendment, are synonymous, supposedly creating a redundancy in the Second Amendment’s text. To eliminate the redundancy, the Second Amendment was edited by deleting “[a] well regulated Militia, being necessary to the security of a free State,” leaving only “the right of the people to keep and bear arms shall not be infringed.”

As revised, the Second Amendment was held by the majority to bar federal infringement of the people’s right to keep and bear arms unrelated to militia service. Predictably, in McDonald v. Chicago, the Court in 2010 held that under the 14th Amendment the protection from infringement of the right to keep and bear arms established in Heller is extended to bar infringement by state and local governments. The rulings stand as a barrier to government efforts to combat the massive gun violence problem in the nation, and that result was achieved by rejecting a reasonable alternative that would have followed precedents, including Chief Justice Marshall’s long established rule of interpretation. This caused further erosion of the public’s confidence in their supreme judicial body. The last of the series of highly controversial decisions came in 2010 in Citizens United v. Federal Election Commission.

The Court had previously determined that expenditure of money to purchase the publication of a message is the exercise of a form of speech protected by the First Amendment to the Constitution (derisively referred to as “money is speech”).

The Court had also previously determined that the protection of free speech afforded by the First Amendment extends to the ”speech” of a corporation (derisively referred to as “corporations are persons”). The two precedents were simply mated in Citizens United to produce a ruling, but the more important point in the decision is that, absent prearrangement and coordination with a candidate, investment in political advocacy is free speech protected from abridgment by the First Amendment.

The dissenters’ concern that the resulting unrestrained flow of money into the political arena would adversely impact our election system was dismissed by the majority’s assertion that the predicted adverse consequences would not occur. However, in the current 2012 election campaign season the predicted adverse consequences are occurring for all to see.

The Citizens United decision has in fact allowed money to flood into the political arena. The devastating consequences predicted when the decision was handed down are now all too apparent when it is too late to reverse course, at least for the current election season, and recognize that a corporation (or any artificial entity) is merely a tool used by natural persons to carry out their own purposes and thus not entitled to separate rights protected by the First Amendment; and that an unlimited supply of money from sources of wealth does corrupt our politics.

Justice Scalia once responded to critics of a decision by telling them they should just get over it. Notwithstanding the admonition, what if public dissatisfaction caused by the foregoing series of decisions has simply accumulated, as likely is the case? Weighed down by its recent history, the Court now has another momentous decision to make that involves the following facts.

Health care accounts for at least one-seventh of the nation’s economic activity, making it an obvious part of interstate commerce. Health care is a universal need, varying individually only in the timing and degree of care. At any time, each of us is either contributing to health care commerce by using health care or impacting such commerce by the anticipation of future use.

Our health care system is not the world’s best as some claim. We rank behind at least two dozen other countries in health care results, but our per capita expenditures far exceed those of any other country and our health care costs are inflating at an explosive rate. We are the only developed nation without universal health care.

Our system assumes that most of us have health insurance because, without it, the average person cannot afford a serious illness, yet some 50 million of our people have no health insurance, often because they can’t afford it or can’t obtain it.

Health care is a major, growing national problem, weighing heavily on interstate commerce as well as the general welfare of the people, which Congress has attempted to address with the Affordable Care Act – the first solution enacted after a century of hoping for one. The Act may be politically unpopular with many, and it may not be the preferred, or even a good, solution, but these are not matters with which the Court should be concerned. No limit is actually specified in the Constitution on the power granted to Congress to regulate interstate commerce.

The “liberty of contract” idea previously used by the Court for many years to limit the regulatory power of Congress was a judicial invention that was abandoned some 70 years ago. The power granted Congress by the Constitution to legislate for the general welfare, even though constricted by previous judicial interpretation, literally fits the Affordable Care Act perfectly.

The Court will thread its way through the intricacies of legal arguments to reach its decision, but the public will judge the Court and its decision on the Affordable Care Act on the basis of the foregoing facts.

James Van Vliet writes in Chicago. He is a retired lawyer.

From The Progressive Populist, June 1, 2012

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