“…And Justice For All?”

April 2nd, 2012



The Supreme Court debate on health care was shocking to many Americans. The shock was that the arguments going on inside the court sounded so much like the arguments going on outside the court. It was nakedly political. The partisan takeover of American politics has now engulfed the Supreme Court.

We’ve seen it coming for some time. The Bush v. Gore decision that handed the White House to George W. Bush in 2000 was a signal. All five justices who voted to end the Florida recount had been nominated by Republican Presidents. The four dissenters included the two justices nominated by President Clinton (Ruth Bader Ginsburg and Stephen Breyer), but also two Republican nominees (David Souter, named by the first President Bush, and John Paul Stevens, named by President Ford).

Ten years later, the landmark campaign finance decision in the Citizens United case was even more partisan. The majority opinion that lifted restrictions on political contributions was signed by five Republican nominees. The dissenting opinion was joined by all three Democratic nominees (Ginsburg, Breyer and Sonia Sotomayor), plus Stevens.

Supreme Court confirmation battles have become intensely ideological. Now we’re getting the payoff. If the court hands down a 5-to-4 decision striking down the health care law, the partisan alignment is likely to be complete: five Republican nominees in the majority and four Democratic nominees in dissent (the three above, plus Elena Kagan). The big question mark is Anthony Kennedy, a Reagan nominee who has sometimes sided with liberals, though not in the Bush v. Gore or Citizens United cases.

The conservative justices launched a fierce attack on the mandate requiring individuals to purchase health insurance or else pay a fine. “If the government can do this, what can it not do?” Justice Scalia asked with more than a hint of sarcasm. Chief Justice Roberts added, “Once you’re into interstate commerce and can regulate it, pretty much all bets are off.” Roberts mused, “Can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?” Justice Alito added, “Do you think there is a market for burial services?”

They made the mandate sound like a radical scheme launched by a socialist conspiracy. Actually, the mandate was originally embraced by conservatives as a reasonable alternative to government-run insurance. A health care mandate was signed into law in Massachusetts by Gov. Mitt Romney. And opposed by Barack Obama in the 2008 Democratic primary campaign.

It happens to be the only provision of the health care law that the public finds objectionable. But reason enough for the public to support repeal of the entire law.

Justices nominated by Democrats defended the mandate. “Those who don’t participate in health care make it more expensive for everyone else,” Justice Ginsburg observed. Justice Sotomayor noted that “there is government compulsion in almost every economic decision.” Justice Breyer argued that the Court could limit the scope of the mandate without eliminating “the possibility that we are trying to take the 40 million people who do not have medical [insurance], who do affect interstate commerce and provide a system that you may like or not like.”

Noting that about half the states advocate repeal of the mandate, Justice Scalia wryly observed, “Is there any chance at all that 26 states opposing it have Republican governors and all of the states supporting it have Democratic governors? Is that possible?”

“There’s a correlation,” plaintiffs’ attorney Paul Clement responded.

Partisan polarization creates gridlock. And gridlock has become the new norm in American politics. The only way out, given the separation of powers in the U.S. Constitution, is for one party to win control of everything. If compromise with your partisan adversaries is impossible, there’s only one way to advance your agenda. You have to beat their brains out. Republicans have been dreaming of doing that since their sweeping victory in the 2010 midterms.

But one-party control has not been popular. It ended in disaster for Democrats in 1993-94. And again in 2009-10, when a Democratic Congress passed the health care bill. One-party government ended up badly for Republicans, too, in 2003-06.

If the court strikes down the health care law, the Democratic Party base will be angered and energized. They will rally to keep President Obama in office so he can appoint more liberal justices. The Republican base will feel validated in their view that President Obama favors an unconstitutional expansion of government. Conservatives will claim justification for their argument that Obama’s presidency has been a failure.

In other words, more polarization.