Judicial activists in the Supreme Court
By E.J. Dionne Jr., Published: March 28
Three days of Supreme Court arguments over the health-care law
demonstrated for all to see that conservative justices are prepared to
act as an alternative legislature, diving deeply into policy details as
if they were members of the Senate Health, Education, Labor and Pensions
Committee.
Senator, excuse me, Justice Samuel Alito quoted Congressional Budget
Office figures on Tuesday to talk about the insurance costs of the
young. On Wednesday, Chief Justice John Roberts sounded like the House
whip in discussing whether parts of the law could stand if other parts
fell. He noted that without various provisions, Congress “wouldn’t have
been able to put together, cobble together, the votes to get it
through.” Tell me again, was this a courtroom or a lobbyist’s office?
It fell to the court’s liberals — the so-called “judicial activists,”
remember? — to remind their conservative brethren that legislative power
is supposed to rest in our government’s elected branches.
Justice Stephen Breyer noted that some of the issues raised by opponents
of the law were about “the merits of the bill,” a proper concern of
Congress, not the courts. And in arguing for restraint, Justice Sonia
Sotomayor asked what was wrong with leaving as much discretion as
possible “in the hands of the people who should be fixing this, not us.”
It was nice to be reminded that we’re a democracy, not a judicial
dictatorship.
The conservative justices were obsessed with weird hypotheticals. If the
federal government could make you buy health insurance, might it require
you to buy broccoli, health club memberships, cellphones, burial
services and cars? All of which have nothing to do with an uninsured
person getting expensive treatment that others — often taxpayers — have
to pay for.
Liberals should learn from this display that there is no point in
catering to today’s hard-line conservatives. The individual mandate was
a conservative idea that President Obama adopted to preserve the private
market in health insurance rather than move toward a
government-financed, single-payer system. What he got back from
conservatives was not gratitude but charges of socialism — for adopting
their own proposal.
The irony is that if the court’s conservatives overthrow the mandate,
they will hasten the arrival of a more government-heavy system. Justice
Anthony Kennedy even hinted that it might be more “honest” if government
simply used “the tax power to raise revenue and to just have a national
health service, single-payer.” Remember those words.
One of the most astonishing arguments came from Roberts, who spoke with
alarm that people would be required to purchase coverage for issues they
might never confront. He specifically cited “pediatric services” and
“maternity services.”
Well, yes, men pay to cover maternity services while women pay for
treating prostate problems. It’s called health insurance. Would it be
better to segregate the insurance market along gender lines?
The court’s right-wing justices seemed to forget that the best argument
for the individual mandate was made in 1989 by a respected conservative,
the Heritage Foundation’s Stuart Butler.
“If a man is struck down by a heart attack in the street,” Butler said,
“Americans will care for him whether or not he has insurance. If we find
that he has spent his money on other things rather than insurance, we
may be angry but we will not deny him services — even if that means more
prudent citizens end up paying the tab. A mandate on individuals
recognizes this implicit contract.”
Justice Antonin Scalia seemed to reject the sense of solidarity that
Butler embraced. When Solicitor General Donald Verrilli explained that
“we’ve obligated ourselves so that people get health care,” Scalia
replied coolly: “Well, don’t obligate yourself to that.” Does this mean
letting Butler’s uninsured guy die?
Slate’s Dahlia Lithwick called attention to this exchange and was
eloquent in describing its meaning. “This case isn’t so much about
freedom from government-mandated broccoli or gyms,” Lithwick wrote.
“It’s about freedom from our obligations to one another . . . the
freedom to ignore the injured” and to “walk away from those in peril.”
This is what conservative justices will do if they strike down or
cripple the health-care law. And a court that gave us Bush v. Gore and
Citizens United will prove conclusively that it sees no limits on its
power, no need to defer to those elected to make our laws. A Supreme
Court that is supposed to give us justice will instead deliver ideology.
http://www.washingtonpost.com/opinions/activist-judges-on-trial/2012/03/28/gIQAKdE2gS_story.html