If there is any good news to come from the Supreme Court throwing out “Obamacare” (as even the President is now happy to describe it) it is that it will tear open one of the last great delusions of American life. No, not that “reality TV” isn’t real, but rather that the Supreme Court is the one branch of the government above and immune from politics. Only the naive have continued to embrace this ninth-grade civics mirage until now.
Despite the tone and hysteria of last week’s oral arguments, I hold out my own naive hope that this Roberts court will not throw out — on a micro-fiber fine re-interpretation of established law — the individual mandate and thus the economic heart of the Affordable Care Act. The justices have already voted, so we’re merely in the window prior to their formal decision in a couple of months. But I have a wisp of cockeyed optimism drifting through my alleged brain.
Having digested a bombardment of punditry over the past week my thinking is largely in step with those saying that Chief Justice Roberts may hold as much of the key to this — truly epochal — decision as Anthony Kennedy, the Court’s perennial “swinger”. The thinking being that unlike Antonin Scalia, Samuel Alito and the inexplicable Clarence Thomas, Roberts has his name on this era of the Court, and with one more shameless exercise in rank partisanship his historical fate will be forever sealed. He will be the guy who oversaw the Supreme Court as it debased itself to the level of … Congress itself.
I mention Justice Thomas as a fellow Holy Cross Crusader long since turned into a mute and sullen partisan … him, not me the ever cheerful. (We were on the Worcester campus together lo those many years ago. I don’t remember him, despite the fact that I was a member of the student senate when the black kids on campus “struck” the school — a generally liberal Jesuit place — over “de facto racism” and many showed up to vent at senate meetings.) Thomas has now broken his old record of Trappist silence from the bench. It’s been six years since the man asked a question in open court. You can make your own analyses of what that’s all about. But in my experience the intellectually insecure in positions far over their abilities occasionally have the wisdom not to open their mouths and remove all doubt.
I will be fascinated to read some day the history of Thomas’ years on the Supreme Court. (In two years Thomas will have “served” as long as Louis Brandeis … think about it.) My guess is that the same inert, chip-on-the-shoulder image we see in public is what we have been getting in the Court’s inner sanctums.
The point is that Thomas, Alito and Scalia are forever, perpetually and resolutely in step with the country’s hyper-partisan modern conservatism, where anything tainted with “liberalism” is a threat to be stopped dead in its tracks (Bush v. Gore), overwhelmed, (Citizens United) or reversed, (Obamacare). Those three men are settled questions. Kennedy, the swinger, may bat for either team.
But Roberts has to recognize that Obamacare will be for him a third strike. Its defeat will be conclusive proof of his court’s focused commitment to thwart all significant liberal activity in the governance of the United States, despite in this case, a monumental piece of legislation whose heart — the mandate — is a deeply conservative concept. It was designed, I dare say, to protect the profit interests of a private industry, was first proposed over 100 years ago by a conservative icon (Teddy Roosevelt), was brought to life in the modern vernacular by the man most likely to carry the conservative banner this fall (Mitt Romney), and was ferociously and exhaustively (and hysterically) debated coast to coast for over two years before passing into law on a vote of the duly elected legislative branch. To rule it down, on what will have to be a nigh-on-to-farcical parsing of a law full of countering precedents will have the effect of debasing this court in the view of the public, the world and history.
Also, as I slogged through all punditry and quotes from justices there was one that jumped out at me. It came up when Solicitor General Donald Verrilli was explaining the cost impact to tax payers of “free riders”, the crowd lacking insurance who simply show up at emergency rooms for treatment where — because Ronald Reagan signed the law — the government requires hospitals to provide treatment, which is then passed on to everyone else as higher overall costs. Verrilli noted that we are “obligated” to provide this basic humanitarian service.
And what was the response from Scalia, the Roberts court’s primary ventricle?
“Well, don’t obligate yourself to that.”
Think about that one. It’s breathtaking. Never mind the easy jokes about something like that coming from a guy on a lifelong government pension and full government medical coverage. It is also so utterly representative of the modern, hyper-partisan conservative attitude toward all enormous social problems … don’t do anything.
The Supreme Court’s role isn’t to create solutions to these profound social problems, like coverage and cost of health care, but if it votes down Obamacare it will leave little doubt that it is a petty, indifferent and nakedly partisan supporting character to a self-serving ideology, an ideology that not only offers no credible solutions of its own to these problems, but doesn’t even try.