Obamacare at the Supreme Court: What's broccoli got to do with it?

The Supreme Court strives for legitimacy even as justices betray their prejudices on health care law

April 02, 2012|Dan Rodricks

I interviewed Supreme Court Justice Stephen Breyer last year, and — let me put it this way — I can't think of anyone less qualified to replace Rush Limbaugh as a radio talk show host. Thoughtful, wise, a little dry and measured in his words, Justice Breyer seemed to be everything Americans should want in a judge. He betrayed no particular ideology during an hourlong conversation about the Supreme Court's role in our democracy. He politely refused to answer a question related to a case before the court. And he didn't once mention broccoli.

Justice Antonin Scalia, on the other hand, seemed to be auditioning for his own talk show during last week's hearings on the 2010 Affordable Care Act, or "Obamacare." "Everybody has to buy food sooner or later," Justice Scalia said, drawing a comparison between groceries and health insurance. "Therefore, everybody is in the market; therefore you can make people buy broccoli?"

His fans keep telling us of the brilliance of Justice Scalia — so brilliant, no one can touch him. But the broccoli hypothetical didn't strike me as particularly brilliant. It sounded more Limbaughian than anything else, some conservative talking point on Obamacare circulated by the Republican Party.

"There's no doubt that lack of exercise causes illness, and that causes health care costs to go up," Justice Scalia said, as the audition continued. "So the federal government says everybody has to join an exercise club."

This wasn't genuine judicial probing. This was cheap, sound-bite rhetoric that betrayed a predisposed hostility toward the law.

Of course, Justice Scalia, a so-called constitutional "originalist," enjoys preaching about his approach to the law. He likes giving talks and making splashes in the media. In a speech to corporate attorneys reported by The Washington Post in January, Justice Scalia said proponents of "living constitutionalism" (the belief that changing times demand evolving interpretations of the Constitution) were "crazy." Worse, in an interview last year, he dismissed any doubts about the constitutionality of the death penalty, telling California Lawyer magazine: "I don't even have to read the briefs, for Pete's sake."

No American — liberal, conservative, moderate, libertarian — should be comfortable with a Supreme Court justice who so arrogantly betrays his prejudices in public. Which is why the hearings on the Affordable Care Act were so disturbing.

I support the law, but I also understand and respect the constitutional challenge to it. If the Supreme Court strikes it down, we'll have to live with the decision, though it will not directly affect the vast majority of Americans, including justices of the Supreme Court, who have health insurance. We'll still have coverage. And, of course, we'll all continue to pay for the medical treatment of millions of uninsured.

Either way, this decision would be easier to accept — and the Supreme Court would maintain and even enhance its legitimacy — if we could believe that ideology had not trumped impartiality from the start.

But Justice Scalia and two of his brethren didn't even try to disguise their prejudices. JusticeSamuel A. Alitoand Chief JusticeJohn G. Roberts Jr.seemed to be attacking the merits of the law, not testing its constitutionality.

Justice Scalia even raised a political dynamic of the law's passage, referring to the 11th-hour deal the Democrats made to secure Nebraska Sen. Ben Nelson's critical vote. "It's clear that Congress would not have passed it without that," Justice Scalia said. "You are telling us that the whole statute would fall because the Cornhusker kickback is bad."

What does this political-insider stuff — legendary among Obamacare haters — have to do with the Commerce Clause?

In his book, "Making Our Democracy Work," Justice Breyer presents the court as a partner with the other branches in making government effective while checking its excesses. He believes in judicial restraint — that is, leaving the business of governing and lawmaking to the people we elect to represent us. That, he says, is how the court maintains its legitimacy, not by impeding or always correcting the other branches. "At the end of the day," Justice Breyer writes, "the public's confidence is what permits the court to ensure a Constitution that is more than words on paper [and] that it protects individual liberty, and that it works in practice for the benefit of all Americans."

Including the nearly 50 million who have no health insurance, at great expense to the rest of us.

Dan Rodricks' column appears Tuesdays, Thursdays and Sundays. He is the host of "Midday," each weekday from noon until 2 pm, on WYPR-FM. His email is dan.rodricks@baltsun.com.

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