“Humanity Hanging In The Balance”: Healthcare And Justice Scalia’s Broken Moral Compass
The Supreme Court’s highly anticipated ruling on Obama’s healthcare reforms could come any day now. Whatever the verdict, expect much ado about the hotly debated role of broccoli in healthcare and arcane explanations of the Commerce Clause that is at the center of the legal case against the individual mandate. But buried deep in hearings filled with legalese and judicial sparring was a short exchange that illuminates an American ideal that truly hangs in the balance with this decision—the idea that in a civilized society, we do not sit idly by and watch our neighbors die.
The specific back-and-forth in question occurred on the third day of the hearings between Justice Antonin Scalia and Solicitor General Donald Verilli, the administration official charged with defending the law in court. It went like this:
GENERAL VERRILLI: No. It’s because you’re going—in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow—that—to which we’ve obligated ourselves so that people get health care.
JUSTICE SCALIA: Well, don’t obligate yourself to that. Why—you know?
GENERAL VERRILLI: Well, I can’t imagine that that—that the Commerce Clause would —would forbid Congress from taking into account this deeply embedded social norm.
JUSTICE SCALIA: You—you could do it.
If you are not a frequent watcher of the Court and therefore not fluent in the cadences of judicial banter, this short, seemingly banal interchange in an exhaustive debate may not have even registered. The “deeply embedded social norm” that Verilli refers to—in fact seems confused that he has to explain to Justice Scalia—is the norm that dictates that people will step in to aid others who are ailing or in danger of death.
Scalia’s statement that “you could do it [defy these norms]” eerily evoked the appalling moment at the September 2011 Republican presidential debate when the audience wildly applauded Wolf Blitzer’s stunned probing of whether candidate Ron Paul would allow a 30-year-old uninsured man in a healthcare emergency to die. “Yes!” shouted unashamed audience members, turning a presidential debate into something reminiscent of the Roman Colosseum. When Justice Scalia argued against the social norms that Verilli was presuming sacrosanct, he was essentially saying, “Let him die!”
While we’ve grown to expect this kind of mob mentality from a radical right wing whipped up in a Tea Party frenzy, this bizarre display of indifference from a Supreme Court Justice breaks new ground in an evolving culture that seems to prize resistance to any and all government over the compassion that is the essence of civilized society. The right screams often and loudly that President Obama has declared war on the Judeo-Christian underpinnings they hold as American as apple pie. But in fact, it is Justice Scalia, from his exalted perch, who appears intent on vacating the Golden Rule and undermining the parable of the Good Samaritan, both core to Christian theology.
Dahlia Lithwick hit the proverbial nail on the head in her description of Justice Scalia when she wrote in Slate in 2003:
Scalia doesn’t come into oral argument all secretive and sphinxlike, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say. And he uses the hour allocated for argument to bludgeon his brethren into agreement.
Scalia, ever the showman, joked during the March hearings that having to read the entire healthcare law in order to rule on it would amount to cruel and unusual punishment, prohibited by the Constitution. At the same time, he displayed an egregious ignorance regarding which provisions in the bill actually passed. And on the final morning of arguments, Scalia laid his cards on the table when he argued that stripping out the individual mandate would cause the whole law to topple.
The mandate, more descriptively titled the “free-rider clause,” fines uninsured individuals who expect taxpayer-supported emergency services to cover calamities that befall them. It is also the component of the reform that allows insurance companies to affordably cover those with pre-existing conditions. Cutting the mandate, Scalia mused, cuts the heart out of the entire reform and would almost certainly kick the whole matter back to a gridlocked Congress, while millions of lives hang in the balance.
A recent Pew poll shows that approximately 83 percent of Americans are affiliated with an organized faith, be it a form of Christianity, Judaism, Muslim, Hinduism or Buddhism. A whopping 78.4 percent of us fall somewhere in the Christian camp. Yet, it is core Christian values that are currently on trial at the Supreme Court.
Perhaps this emotional dissonance is what drives a new poll from the New York Times that shows that only 44 percent of Americans approve of the job the Supreme Court is doing. Once a venerated institution that seemed immune to the partisan squabbles of the other branches of government, the Court has consistently displayed its corporate and right-wing allegiances in decisions that span from 2000’s Bush v Gore when it picked our president and irrevocably altered the course of history (Scalia later told Americans to “get over it!” when asked about the decision) to the 2009 Citizens United decision, the impact of which is being felt acutely this election season. Now, 75 percent of Americans say that the Justices’ political preferences motivate their decision making on the bench.
When healthcare reform passed in 2010, the United States ranked dead last among similar countries in a study comparing cost and quality of healthcare. America consistently spends twice as much for lesser care than its industrialized allies. While the Affordable Care Act left some of the best solutions on the table, it offers real hope to the one in four American adults that go without healthcare each year due to job transitions or other circumstances. So many of our neighbors live in terror that a single unexpected calamity will drive their family into bankruptcy spurred by emergency medical bills. Now, when the verdict comes in, those fellow Americans can add a new fear to their list: that a Conservative Catholic Supreme Court Justice will lead the charge to let them die.
By: Ilyse Hogue, The Nation, June 18, 2012
“A Partisan Cleerleader”: Supreme Court Justice Scalia Turns Advocate Against Obama
In January, Supreme Court Justice Antonin Scalia accused the U.S. Environmental Protection Agency of “high-handedness.” He was just getting warmed up.
Over the next 3 1/2 months, Scalia asked whether federal immigration policy was designed to “please Mexico,” fired off 12 questions and comments in 15 minutes at a government lawyer in a case involving overtime pay, and dismissed part of Solicitor General Donald Verrilli’s defense of President Barack Obama’s health-care law as “extraordinary.”
Scalia’s tone this year, particularly in cases involving the Obama administration, is raising new criticism over the temperament of a justice who has always relished the give-and-take of the Supreme Court’s public sessions. Some lawyers say Scalia, a 1986 appointee of Republican President Ronald Reagan, is crossing the line that separates tough scrutiny from advocacy.
“His questions have been increasingly confrontational,”said Charles Fried, a Harvard Law School professor who served as Reagan’s top Supreme Court advocate. While the justice has always asked “pointed” questions, in the health-care case “he came across much more like an advocate.”
Scalia’s approach is fueling the perception that the biggest cases this term, including health care, may be influenced by politics, rather than the legal principles that he and other justices say should be their guide. A Bloomberg News poll in March showed that 75 percent of Americans think the court’s decision on the 2010 law will be based more on politics than on constitutional merit.
Campaign Issue
“Someone who had just tuned into the health-care argument might get the impression that the court is a much more partisan institution than it actually is,” said David Strauss, a constitutional law professor at the University of Chicago Law School.
The week after the health-insurance argument, Obama showed a willingness to make the court an issue in his re-election campaign, saying a ruling striking down the law would be“judicial activism” by “an unelected group of people.” The court will probably rule by the end of June.
Scalia, 76, declined to comment for this story, said Kathy Arberg, a Supreme Court spokeswoman.
The justice has never shied away from controversy. He once wrote that a colleague’s reasoning in an abortion case “cannot be taken seriously.” When the court expanded the rights of prisoners at the U.S. naval base in Guantanamo Bay, Cuba, he dissented by saying the ruling “will almost certainly cause more Americans to be killed.”
‘Nasty’ Question
In 2009, he told a college student she had posed a “nasty, impolite question” when she asked whether book tours by the justices undermined their case for banning camera coverage of arguments. In 2006, he flicked his hand under his chin, using a dismissive gesture he said was Sicilian, to show his disdain for a reporter’s question.
In the courtroom, he is quick with one-liners, drawing laughter more frequently than any other justice during the court’s current nine-month term, according to DC Dicta, a blog that tracks the court.
Of late, Scalia’s most pointed remarks have come at the Obama administration’s expense.
In January, he directed his fire at Malcolm Stewart, a Justice Department attorney. Stewart was defending the EPA’s use of administrative compliance orders that demand an end to alleged environmental violations, in many cases insisting that recipients restore their land to its previous state.
‘That’s Very Nice’
Scalia made his contempt clear after Stewart said that people and companies could seek to change any “infeasible”requirements.
“Well, that’s very nice,” the justice said. “That’s very nice when you’ve received something called a compliance order, which says you’re subject to penalties” of $32,500 per day.
When Stewart said the EPA had modified the order at issue, dropping a requirement that an Idaho couple replant vegetation on their property, Scalia scoffed again. “It shows the high-handedness of the agency, it seems to me, putting in there stuff that is simply not required,” he said.
The court unanimously ruled against the EPA in March, giving landowners more power to challenge compliance orders in court.
Target: Verrilli
With health care, Scalia’s primary target was Verrilli, the administration’s top Supreme Court lawyer. Defending the law’s requirement that Americans get insurance or pay a penalty, the solicitor general argued that uninsured people often receive care, even if they can’t pay for it, because of the “social norms to which we’ve obligated ourselves.”
“Well, don’t obligate yourself to that,” Scalia said.
Later, Scalia called one strand of the government’s defense– its contention that Congress could legally enact the law as a tax — “extraordinary.”
The following day, he mocked an assertion by another Justice Department lawyer, Edwin Kneedler, as the court considered what would happen to the rest of the law should a key provision mandating that most Americans obtain insurance be declared unconstitutional. Kneedler said the court should look at “the structure and the text” of the 2,700-page statute.
“Mr. Kneedler, what happened to the Eighth Amendment?”Scalia asked, referring to the provision of the U.S. Constitution that bars cruel and unusual punishment. “You really want us to go through these 2,700 pages?”
‘Statute’s Gone’
At times during the health-care debate, Scalia took to stating his position, rather than asking questions. He all but declared that he would vote to invalidate the whole law, not just the insurance mandate. “My approach would say if you take the heart out of the statute, the statute’s gone,” he said.
In a Labor Department case that concerns claims for overtime pay by drug-industry salespeople, lawyer Stewart urged the court to side with the employees and defer to the department’s interpretation of a federal wage-and-hour law.
Scalia, who directed a dozen questions and comments at Stewart, criticized the department for laying out that position in court filings, known as amicus briefs, rather than through formal rulemaking.
“This is part of a regular program that the agency has now instituted, to run around the country and file amicus briefs –is that it?” Scalia asked — again calling the approach“extraordinary.”
‘Please Mexico?’
Scalia described as “extraordinary” yet another administration position, this time when Verrilli urged the court to strike down Arizona’s illegal-immigration law. Scalia bristled when the solicitor general said “we have to have the cooperation of the Mexicans,” something Verrilli said the federal government could best secure without state interference.
“So we have to enforce our laws in a manner that will please Mexico?” Scalia said. “Is that what you’re saying?”
Not everyone thinks that Scalia has gone too far. Ilya Shapiro, an opponent of the health-care law who attends eight to 10 arguments each term, says he sees no change in Scalia’s approach.
“He’s sarcastic, and he goes right to the heart of the weakness of the advocate who’s in front of him,” said Shapiro, a senior fellow at Washington-based Cato Institute, which advocates for limited government.
On health care, Scalia was simply trying to “express his exasperation with the government’s assertion of power,” he said.
Troubling Pattern
To other Supreme Court lawyers, Scalia’s questions show a troubling pattern. Rather than merely probing legal arguments, he has served as a “partisan cheerleader,” said Doug Kendall, president of the Constitutional Accountability Center in Washington, which supports the administration on health care and immigration.
“It’s disturbing to see a justice use oral argument as a platform for expressing the talking points that you hear each night on Fox News,” Kendall said. “I can’t think of a serious question that he posed in either argument suggesting that he was open to have his mind changed.”
By: Greg Stohr, Bloomberg News, May 15, 2012
“Unacceptably Apart From The Rest”: In Healthcare Debate, The Supreme Court Is Risking Its Legitimacy
April first has not rinsed the Supreme Court out of my hair.
Disturbing my peace of mind: the arrogance of Antonin “Nino” Scalia and his four fellow “conservatives” (almost too good a name for what they are if they dismantle President Obama’s healthcare law). Piquing my patience: the journalistic myopia leading up to this moment.
If five unelected men dare to do that, that would be a radical affront to the constitutional authority of the president and the Congress, who both represent the voices of the people. They call the three branches of government a balance of power. Very nice. But in practice, considering the Supreme Court led by Chief Justice John Roberts, all bets are off.
Hearing their voices last week during the case’s oral arguments awakened me—and many of us—from a slumber of apathy about the high court. In general, the justices are a given, a group of nine who rule from a beautiful marble building. We the people can’t do anything about the Republican majority of five—even if we believe Clarence Thomas is a scoundrel who has no place in deciding other people’s fates. They are removed in their black robes, resistant to cameras capturing their proceedings, and altogether mysterious to the public. You can’t even walk up the famous front steps anymore. The cloistered “brethren” like things that way, literally above it all.
Now it’s clear as an April morning: They are unacceptably apart from the rest of us. A nation of 300 million cannot tolerate five men (appointed by George W. Bush, his father, and Ronald Reagan) making a huge medical decision involving life and death for the population. The political class and the press should start letting it be known the court had better not rule against a complex legislative achievement on its second try since Bill Clinton’s presidency. Doctors, nurses, citizen groups, write letters and go stage a demonstration. Let the court hear your voices in their marble manor, just as we’ve heard theirs, insolently comparing health insurance to broccoli—thanks for that, Nino.
In other words, my fellow Americans, don’t just wait for a decision to be handed down from on high. Healthcare reform is surely at stake with this momentous decision, but so is the popular legitimacy of this court.
Far from being fair-minded and deliberative, we are faced with a court characterized by five partisans—and I include Anthony Kennedy, seen as the swing vote. He has enjoyed glowing treatment from the Supreme Court cadre of journalists who have used him as a plot point for years. A Washington institution, he’s not the man in the middle now anymore than he was when he voted for George W. Bush in the Bush v. Gore debacle in 2000, giving new meaning to democracy’s “one man, one vote. ” That wasn’t even 12 years ago, people!
In the scene-setters for the case, I read too many articles in The New York Times and Slate—and heard one too many NPR stories—asserting Kennedy would be a “reasonable” or “moderate” key player in upholding the healthcare reform mandate for his legacy. In fact, one law correspondent said, “everybody” in the legal journalism community thought upholding “Obamacare” was a done deal—until the actual arguments started.
In covering a rarefied realm, journalists jointly create a narrative for a cast of characters—and perhaps get too close to their sources, as those sources aren’t going anywhere for a long time. In Congress across First Street, fresh faces and new blood are circulating every two years. The press galleries there resemble public school, while the press room in the court feels like a posh private school.
As the poet said, April is the cruelest month—at least until June crashes in.
By: Jamie Stiehm, U. S. News and World Report, April 2, 2012
“Openly And Repeatedly Mocked”: What The Supreme Court Thinks Of Congress
The Supreme Court spent the first part of the morning debating the “severability” question, and as Lyle Denniston reported, we learned a bit from the proceedings — most notably what the justices think of Congress.
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.
A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
Of particular interest was the justices’ opinions of Congress — it turns out, American voters aren’t the only ones who hold lawmakers in low regard — which was characterized as an institution incapable of creating a new health care law. Denniston added, “Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or the hypothetical Congress.”
I’d also note that Kagan complained at one point about “the complex parliamentary shenanigans that go on across the street.”
How dysfunctional is Congress? The legislative branch is now being openly and repeatedly mocked by Supreme Court justices during oral arguments — eliciting laughter from those in attendance.
Congress, they were laughing at you, not with you.
By: Steve Benen, The Maddow Blog, March 28, 2012
“Broccoli And Bad Faith”: Health Insurance Is Nothing Like Broccoli
Nobody knows what the Supreme Court will decide with regard to the Affordable Care Act. But, after this week’s hearings, it seems quite possible that the court will strike down the “mandate” — the requirement that individuals purchase health insurance— and maybe the whole law. Removing the mandate would make the law much less workable, while striking down the whole thing would mean denying health coverage to 30 million or more Americans.
Given the stakes, one might have expected all the court’s members to be very careful in speaking about both health care realities and legal precedents. In reality, however, the second day of hearings suggested that the justices most hostile to the law don’t understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as antireform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform.
Let’s start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.
Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.
There are at least two ways to address this reality — which is, by the way, very much an issue involving interstate commerce, and hence a valid federal concern. One is to tax everyone — healthy and sick alike — and use the money raised to provide health coverage. That’s what Medicare and Medicaid do. The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship.
Are these fundamentally different approaches? Is requiring that people pay a tax that finances health coverage O.K., while requiring that they purchase insurance is unconstitutional? It’s hard to see why — and it’s not just those of us without legal training who find the distinction strange. Here’s what Charles Fried — who was Ronald Reagan’s solicitor general — said in a recent interview with The Washington Post: “I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them.”
Indeed, conservatives used to like the idea of required purchases as an alternative to taxes, which is why the idea for the mandate originally came not from liberals but from the ultra-conservative Heritage Foundation. (By the way, another pet conservative project — private accounts to replace Social Security — relies on, yes, mandatory contributions from individuals.)
So has there been a real change in legal thinking here? Mr. Fried thinks that it’s just politics — and other discussions in the hearings strongly support that perception.
I was struck, in particular, by the argument over whether requiring that state governments participate in an expansion of Medicaid — an expansion, by the way, for which they would foot only a small fraction of the bill — constituted unacceptable “coercion.” One would have thought that this claim was self-evidently absurd. After all, states are free to opt out of Medicaid if they choose; Medicaid’s “coercive” power comes only from the fact that the federal government provides aid to states that are willing to follow the program’s guidelines. If you offer to give me a lot of money, but only if I perform certain tasks, is that servitude?
Yet several of the conservative justices seemed to defend the proposition that a federally funded expansion of a program in which states choose to participate because they receive federal aid represents an abuse of power, merely because states have become dependent on that aid. Justice Sonia Sotomayor seemed boggled by this claim: “We’re going to say to the federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can’t structure the program the way you want.” And she was right: It’s a claim that makes no sense — not unless your goal is to kill health reform using any argument at hand.
As I said, we don’t know how this will go. But it’s hard not to feel a sense of foreboding — and to worry that the nation’s already badly damaged faith in the Supreme Court’s ability to stand above politics is about to take another severe hit.
By: Paul Krugman, Op-Ed Columnist, The New York Times, March 29, 2012
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