So on Wednesday, I was able to attend the Supreme Court oral arguments in person. People told me it would be impossible to do since there were people who had begun camping out in front of the Court in the weekend prior to arguments and there was limited seating. I tried to get in on Tuesday but had failed. Wednesday though I was determined to make it in. It required waking up extraordinarily early, waiting in line for hours in the freezing cold, and just a little bit of luck/a complete random act of kindness from a complete stranger but I got in. I can't express in words just my elation at getting one of those little yellow admission tickets....kinda like receiving the magic Willy Wonka tickets I would think.
I had not been to an oral argument before at the Supreme Court. I figured that if there was any argument to attend, it would be this one. It's not only historic but I will be personally affected by the results. Even though I'm young, healthy, in good physical shape, and can afford to purchase good health insurance, I can't get it. Why not? I technically have "pre-existing conditions." So in order to get basic health insurance, I enrolled on one of those high risk open enrollment plans that was created by Obamacare (health insurance companies can no longer discriminate against those with pre-existing conditions who are under 18 but still can against those who are older than 18 and these plans have been created as a stop gap in the meantime).
I think that there has been some excellent legal analysis here on the constitutionality of Obamacare and I don't need to repeat too much of what has already been said. To sum up: I agree with those who say that this act is 100% constitutional and that to overturn it would be an act of extreme judicial activism by the Court which would not only have to make up entirely new law but abandon 7-8 decades of precedent. I don't share the same level of pessism by those in the news media and I also agree with those who overemphasize oral arguments. I think the Solicitor General, Donald Verilli, did a fine job during oral arguments (his assistant who argued on Wednesday morning, I was less impressed with). I was also impressed with the third lawyer who argued that if the mandate was unconstitutional, the rest of the Act should be saved. He was impressive all around. My two cents would be that if there is a 5-4 decision to uphold Obamacare in its entirety, it's probably John Roberts (not Anthony Kennedy). Also, I think the Court, if it does invalidate the indidivual mandate (something I'm not entirely sure they'll do), is likely to keep most of the rest of the Act.
But I write this diary to express some of my disappointments with the Court and the behavior of some of the Justices during oral argument.
So what bothered me? Well a number of things.
1. Long and Drawn-Out Discussions of Public Policy
At Wednesday morning's oral argument, perhaps the thing that troubled me the most were the long discussions regarding public policy engaged in by some of the Court's Justices. Several Conservative Justices (Samuel Alito, Antonin Scalia, and Anthony Kennedy) engaged in long winded discussions of public policy and the impact severing just the indidivual mandate would have on the Act. Samuel Alito cited all sorts of economic figures to discuss why the Act would be flawed without the individual mandate. Nino Scalia spent time opining on whether the bill would have passed without certain provisions designed to attract votes. Anthony Kennedy spent time debating whether it would be sustainable to take out the individual mandate but leave the rest of the act given the expense...as a matter of public policy.
Now as a baby lawyer and a Liberal, I shouldn't be the one having to point out that it is not the job of the Supreme Court (or any court for that matter) to make public policy. At the very least, the Court should never make public policy decisions in contradiction to what the legislature has already clearly spoken on. Courts aren't there to be an alternative legislature, striking down laws that they don't like or laws they think they could have written better. They're there to decide questions of law.
Obamacare may be good policy or it may be bad policy. There may be better alternatives to enact and there may be valid discussion on that. However, that's a job for Congress, NOT the Supreme Court. Why's that? It runs counter to our notions of democracy and representative self-government. Judges are unelected, we can't change them out if we don't like them, we can't lobby them on cases like we can lobby the President and our legislators.
What I find particularly galling about this is that the Justices most actively engaging in these long public policy discussions are the Conservatives, the same Justices who spend a great deal of their time lecturing against "judicial activism" and calling for "judicial restraint." They have exposed themselves as complete and utter hypocrites.
2. The Compassion and Concern for Health Insurance Companies (and lack thereof for the millions who will lose health insurance and their healthcare if the Act is invalidated)
This relates to the issue of long and drawn out public policy discussions but I found it particularly appalling to see the extreme compassion of the Justices for the plight of health insurance companies who would face monetary losses without the individual mandate. The concern and sympathy for them by several of the Justices was misguided at best.
But worse still was the fact that not one single Justice, not one, brought up the fact that if the Court were to strike down this law, that millions of people (at a minimum) who now have health insurance would find themselves without health insurance. In many cases that would mean going from getting neccessary healthcare to receiving none at all. When the government's lawyer attempted to bring this up, John Roberts shut down the argument. Now, perhaps public policy shouldn't be discussed. But if the Justices are going to engage in public policy discussions and express sympathy, concern, and compassion...perhaps they ought to consider doing it for millions of the most vulnerable in society in addition to the large private health insurance companies.
What gets me is the realization that all 9 Justices receive health insurance as part of their salary that provides the finest medical care in the world. They get it regardless of pre-existing conditions and they get it even if they otherwise couldn't afford it. They also get it for life even after they retire. All at taxpayer expense (which is fine). Yet, the Court might act to take away health insurance from millions of others and those Justices who seemed most ready to do so seem oblivious to that fact. There's something wrong with that.
3. Justice Alito's Circular Arguments
Having read the transcript of Tuesday's arguments on the constitutionality of the individual mandate and seen part of it in person (for 5 minutes anyway), I would say the strongest vote against the mandate is Samuel Alito. On Wednesday, he was the strongest advocate for bringing down the entire law (he's plotting strategy as well...he asked Paul Clement, the lawyer for those challenging the law, what his backup plan was if the Court wasn't willing to tear down the entire thing).
Now here's the thing. The argument from those challenging the law and agreed with by Justice Alito (and presumably Clarence Thomas as well as at least given serious consideration by Scalia and Kennedy) is that the requirement that everyone purchase health insurance is so tangential and so unrelated to the scope of interstate commerce, it's outside of Congress's authority to regulate. The argument advanced is that this is somehow a regulation to improve health, thus the government could force people to buy gym memberships or broccolli if they could force one to buy health insurance. Hence, Scalia was the one who brought up the broccoli argument (something that Ronald Reagan's Conservative Solicitor General Charles Fried described as "beneath contempt").
On Wednesday though, in their attempts to get the entire law thrown out, the lawyers arguing before the Court as well as Alito, Kennedy, and Scalia pointed out the debilitating effect removing the mandate would have. According to Alito, the economist's briefs he read showed that the new regulations on health insurance companies would cost them $700 billion dollars. To make up for that, $350 billion would come from government subsidies and the other $350 billion would come from new customers under the individual mandate.
My response to this is "um.....hello?" If that's the case, then the individual mandate is not some tangential provision that attempts to improve healthcare (which supposedly affects the economy), the regulation is directly related to commerce. This is something the Court has clearly spoken on.
4. Scalia's Commentary on Having to Read the 2700 pages of the Bill
Nino Scalia is a man who definitely loves the sound of his own voice. That was clearly evident at Wednesday morning's oral argument. He got a big laugh line when he asked Paul Clement what happenned to the 8th Amendment if the Court was forced to read all 2700 pages (or force it off on their law clerks) of the law.
It's a small point but I didn't find much humor in it. If the Court is going to invalidate the individual mandate, then it ought to do its job and figure out what stays and what goes in the law. If that means doing a lot of reading, so be it. That's what they get paid for. They shouldn't complain and act as if it's a pain to do their jobs (there are a LOT of people who would love to have their jobs).
5. The Commentary on Vote Counting on the Hill
When Paul Clement argued that if the entire law were to be thrown out, the constitutional parts could all be easily re-enacted by Congress, the audience in the courtroom literally burst out into laughter. But it wasn't met with laughter by the bench. Both Scalia and Kennedy seemed to delve into Congressional politics, bringing up the Cornhusker Kickback and the need for 60 votes in the Senate to pass legislation.
I found it entirely inappropriate. Yes, we know about sausage making on the Hill. That's not something the Court should ever consider in constitutional analysis and I'm hardpressed to think of a case where the Supreme Court has in the past. Elena Kagan (god bless her) raised this point very effectively. Still, it surprises me that some of the Justices felt free to discuss the politics of passing legislation. And that the junior most Justice on the Court was the one who had to remind them that this isn't something the Court does.
My Final Thoughts
Not all of the Justices bothered me of course. I thought Sonia Sotomayor, in particular, was brilliant and impressive. She was aggressive in her questioning but respectful. She knew her case law and she honed in on the weaknesses of the challenger's arguments with precision. Kagan was also impressive. We need more Justices like the two of them. I love Ruth Bader Ginsburg though she wasn't quite as good as Sotomayor and Kagan. Still brilliant though in her questioning.
I've got no idea how this is going to turn out. The Justices voted on these cases yesterday at Conference (an event that only they are privy too). My inkling is that the law will be upheld in its entirety, even if narrowly so. But I honestly couldn't make a prediction with any confidence. If they strike down this act, it will be an overtly political move and one based on their own personal preferences, not on any existing precedent. If they uphold the law, they will be doing their judicial duty. The fact that it's this close of a question is quite disturbing to me. They risk becoming a political branch that loses its credibility as a result of this. I hope that doesn't happen.
I'm also hopeful that Obama will get the opportunity to appoint some new Justices during his second term and bring in some new blood.