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The Supreme Court: American Solomon?

Although the Big Decision isn’t scheduled until Thursday, the Supreme Court may have already set the tone for the week by judging like Solomon. There was a decision for conservatives upholding Citizens United. There was a decision for liberals banning mandatory life in prison without parole for juvenile offenders. And there was a split decision that struck down parts of the Arizona immigration law but retained its core feature: the requirement that police demand identification from suspected illegal immigrants.

But the Supreme Court also gave no clues about the decision everybody is waiting for on healthcare.

No system of law or justice is ever going to be perfect. People will find much to complain about however the court decides. I am just glad we live in a country where these decisions are made by judges under the law rather than by politicians seeking votes, and hope that the current justices can find a way, as their predecessors going back to John Marshall’s era have done so often in the past, to strengthen confidence in the rule of law even as they decide the tough cases.

Regardless of what happens on Thursday, I have my problems with Obamacare. It is clearly a poorly designed law, written in a rush and adopted in a botched process after Scott Brown’s victory meant that it could only pass the Senate through a fudge. It is also fundamentally unjust in that it forces young people today to subsidize the care of the middle aged without being able to guarantee them the same kind of care and subsidy when they in turn grow old. Beyond that, the law doesn’t do enough to promote the kind of reform and restructuring of the health care system that we really need — harnessing IT to health care in ways that improve outcomes and reduce costs. Although the current law has some good ideas in it, on balance it seems more likely to prevent vital change rather than to enable it.

Those are not the matters the Court is called, however, to decide. Its decision needs to rest on constitutional grounds and not political ones. Let us hope that the decision, whatever it is, rests on clear constitutional reasoning and promotes rather than undermines respect for the law.

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  • vanderleun

    We’re pretty much coming to the end of respect for the law.

  • Chase

    Hey Professor, what do you mean by “preventing vital change”? All of the other developed countries have universal care AND have lower costs than we do. Why don’t we just change to one of those systems, seeing how those they already accomplish the goal – lower costs – that you are advocating rather waiting for hypothetical solutions to emerge in the future. Why don’t we invite the Singaporians, for example, to come over here and show us how it’s done. After all, they have achieved universal care without embracing a Scandanavian style model.

  • ogre

    Were I one of the more rational “liberal” justices and saw the 5-4 vote against the mandate as inevitable, for the Court’s sake I would join the majority, with perhaps a strongly worded “near-dissent” to satisfy my conscious. A 6-3 or 7-2 decision would curtail charges of a political decision by the “right-wing loons” on the court and help SCOTUS retain (regain?)respect among independent Americans in the Great Middle.

  • Tom

    “Why don’t we invite the Singaporians, for example, to come over here and show us how it’s done.”

    Because Singapore is a city-state, not a continent-spanning nation.

  • Jim.

    Doesn’t respect for the law require the culling of “poorly designed law, written in a rush and adopted in a botched process”, and elimination of laws that are “fundamentally unjust”?

    Catholics who wish to promote respect for their church need to clean house when it comes to abusive priests. Judges who wish to promote respect for the Law need to clean house when it comes to monstrosities like ObamaCare.

  • thibaud

    If I were a betting man, I would bet that

    a) Roberts will write the majority opinion

    b) Roberts will continue his recent pattern of independence and concern for his legacy, and therefore put some real distance between himself and the increasingly radical and nutty Scalia as well as the other right-leaning justices

    c) Roberts’ majority opinion will be full of hints and suggestions that Congress use its taxing authority, not absurd giveaways to the health insurance industry like the individual mandate, to fund a sweeping revision of our broken and financially-ruinous healthcare system.

    in other words, we might expect a rational, objective GOP-appointed justice to advance the principle enunciated by conservative Republican DC Circuit Senior Judge Laurence Silberman last November.

    Silberman upheld the mandate on the basis of “the imperative that Congress be free to forge national solutions to national problems.”

    National solutions to national problems. Now wouldn’t that be a breath of fresh air.

  • Kris

    thibaud@6: “National solutions to national problems. Now wouldn’t that be a breath of fresh air.”

    As opposed to your advocating centralization.

  • PA

    National solutions to national problems. Now wouldn’t that be a breath of fresh air.

    So if the problem is REAAAAALY big, then the Federal Government can ignore the Constitution and tell EVERYONE WHAT TO DO.

  • thibaud

    So now Reagan appointee and conservative icon Laurence Silberman is “ignoring the Constitution,” eh?

    The mindless cynicism of the GOP continues to amaze. The mandate was created because the GOP wanted it, for the sole reason that they wished to funnel profits to their cronies in the for-profit health insurance mafia. And then they turn 180 degrees and demonize … the individual mandate.

    I’d bet dollars to donuts that Roberts sees through this charade and will issue a ruling that surprises everyone.

  • Jim.

    @9 thibaud:

    Would you consider Republican appointee (and two-time Republican vice presidential nominee) Earl Warren to be Conservative, too? Just curious.

  • thibaud

    Chief Justice Roberts, 10:18 am ET 6/28:

    “Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”

    Hope for this nation after all.

  • thibaud
  • thibaud


    A great day for all of us.

    Chief Justice Roberts came through.

  • thibaud

    Jim – it was your party that asked for the mandate. And now you’ve got it. Show some gratitude, eh?

  • thibaud

    Crickets have taken over Via Meadia. Rough day?

    Or is there actually some reconsideration going on now, of the vapid memes about big gum’mint – esp as regards VM’s defense of that mother of all bureaucratic kludges, aka the US healthcare non-system?

    Perhaps some of the VM prescriptions against red tape, administrative bloat, outrageous inefficiencies, opaque and capricious – not to mention casually cruel – processes might actually be directed at our joke of a healthcare kludge?

    The one that could be swiftly replaced – and adequately funded via sweeping tax reform – with a simple, straightforward, vastly more efficient, less expensive, more effective public option model supplemented by optional private insurance?

  • Kris

    I’ve had a very busy day and am just now getting caught up with the news, but the first thing I thought of was thibaud@6. With all of our disagreements, credit where it’s due for his prediction.

  • thibaud

    Kris – shoulders of (anonymous internet) giants. Commenters at The New Republic (“rayward”) predicted similar things back in March.

    But I became certain of this when I saw the Arizona decision. This Court is determined to avoid being seen as a group of partisan hacks that commands little respect from either left or right.

    Roberts recognizes that as a real and present danger to our democracy, and he’s right.

    With the “wait and see,” “back in your court” approach that Kennedy followed in the AZ case, I think it was obvious that Roberts would follow up that super-subtle, bravura performance with his own threading of the needle.

    All in all, a magnificent decision.

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