Mar 31 2012




For three days, the nation listen as one of the most important Supreme Court decisions in years was debated. Literally the healthcare of millions of Americans including mine (pre-existing conditions) will be determined by the Supreme Court decision likely to be rendered this June. Prominent commentator Robert Shrum in his column for "The Week" gives us a deep insight into the court and the consequences of possible decisions. This is a powerful article and can be read in its entirety by clicking here.

Shrum opens:

Recall the scorn toward health reform dripping from the lips of Injustice Antonin Scalia. Or think of the tight-lipped Clarence Thomas, who could send a mannequin to sit in his place at the court's oral arguments for all the difference his brooding presence makes. Along with the more plausibly judicious Samuel Alito, he too had more than likely made his decision. And so on the nation's highest court, satire replaced 'stare decisis'  in a slightly altered version of the Red Queen's jurisprudence in Alice in Wonderland: First the verdict, then the trial.

Some observers, and administration officials, hold out hope that Chief Justice John Roberts and Justice Anthony Kennedy will decide to save health reform from the revanchist claims of right-wing constitutionalism. I'm pessimistic because I lived through Bush v. Gore, when the court acted like a political ward committee, stopping the vote count in Florida to hand the presidency to George W. Bush by the margin of a single judicial vote.

A politically infected court could produce a politically unexpected result, strengthening Obama and weakening Romney and the Republicans.

Shrum continues by analyzing the 'five horsemen of the judicial right' activism and its consequences. Most importantly he focuses on the impact on people's lives:

Largely missing from the coverage of the health reform case are the most important consequences of nullifying the law: The tragedy of tens of millions who would again be left without insurance; the plight of young adults now on their parents' policies who would be thrown off; the desperation of those with pre-existing conditions who would be left with no coverage and nowhere to turn; the agony of patients who, because of lifetime limits on their insurance, would see it canceled just before the next round of chemotherapy.

It took a hundred years to remedy all of this by passing health reform; it could take decades to pass it again if and after a changed Supreme Court reversed an ideologically driven denial of health care as a fundamental human right and not just another product in the market place.

Supreme Court

Then the author looks at the possible political consequences of a negative decision by the Court:

The president certainly doesn't want to see his landmark achievement, unequaled since the New Deal and the civil rights revolution of the 1960s, left in the judicial dust. But ironically, such a result could rebound to his benefit. A politically infected court could produce a politically unexpected result that would confound the conventional punditry, strengthening him and weakening Romney and the Republicans.

Here's how.

First, voters who hate Obama and Obamacare — and sadly in our riven politics, hate is the right word — were never going to vote for him anyway.

Second, Americans in the grey zone of doubt about health reform, confused by the fog of lies about the bill, would move on and vote, as they mostly would anyway, on a basis of other issues like the economy, the manifest hollowness of Mitt Romney, the profound unfairness of his priorities, and the job-destroying nature of his record and his economic plan.

Third, the Democratic base and women would rally to Obama because they would understand more plainly than ever the threat of a Republican president packing the Supreme Court with more injustices hostile to reproductive rights, to equality for minorities and gay Americans, and to essential protections for the environment and workers on the job.

Fourth, the aftermath would also engage those who would lose out if the law is swept away, especially young people no longer covered by their parents' insurance. This is a critical voting bloc for Obama — and what happens to them and other losers from an adverse court decision points to a final political consequence which would squeeze the GOP.

Shrum summarizes at the end:

I hope my pessimism about a right-wing revolution dressed in judicial robes will be proved wrong — that this court will not hazard generations of progress by re-engineering a Constitution which conservatives claim to cherish, but which, having lost the great debates of recent history, they may now misuse as a blunt force excuse to ordain their crabbed conception of governance. I hope that John Roberts, who at President Obama's swearing-in couldn't remember the Oath of Office, at least remembers his own — that his comments from the bench were meant to be provocative, not precursors to a reign of error.

I even dare to hope for the survival of the individual mandate. Surely Anthony Kennedy can find and articulate the obvious difference between a federal command for everyone to eat broccoli, one of the puerile hypotheses cited during the argument — and a health insurance mandate that is fitting and proper to the congressional jurisdiction over interstate commerce because what is involved here is one-sixth of the American economy. That would be the right decision, not the right-wing one.

I hope for this, but I fear the alternative, a decision that would live in infamy — that would not only deprive millions of health care, but launch a de-evolution back to the grim days when the Supreme Court in 1918 struck down a child labor law with a rigidly narrow reading of the Commerce Clause.

In a second term, Barack Obama, if he has the chance to appoint new justices, could prevent a new era of reaction. Perhaps the GOP presidential candidates are right about the boilerplate echoing off the walls at their rallies — that this is "the most important election of our lifetime." And unless they draw back from the brink, a slim Republican majority on a debased Supreme Court will help Obama win it.