Last Thoughts of the Supreme Court

Maybe it was the time spent on the hearings or maybe it was the fact the justices have made up their minds and this was theater for the rest of us. But the exchanges during the last two days have been frightening. The impression is that these are not judges but powerful people guided by their whims. The spectacle of the justices picking and choosing what aspects of the bill they liked and whether they should send those back to Congress reminded me of board meetings I've been in where older poohbahs examined the work of the staff and then go ranting off on subjects that aren't relevant and then suggest changes which the staff knows will destroy the product but they are powerless to object.


Let's recap here. The Congress of the United States spent two years of time and untold resources trying to develop a healthcare bill that relied on all the precedents of the Supreme Court. John Kerry, who was head of the Finance Committee,told a demonstration outside the Supreme Court today that the bill was examined by the leading constitutional lawyers and found constitutional even before it was passed. 


Everyone working on this issue starting with the Heritage Foundation, who first suggested the individual mandate, to the Democrats who embraced it all operated on the assumption that it was constitutional. Virtually no one along the way, except the very far extreme right, thought it would run afoul of the Constitution. 


Virtually all the serious conservative and liberal constitutional lawyers I trust have written that its constitutionality is a no-brainer. 


If the Supreme Court does not take this into account--and I believe they will not--and the individual mandate is over-ruled, then we are not governed by law, but simply by men. Unfortunately, the Roberts Court has a habit of trying to create law anew on big cases. In Citizens United, by a 5-4 decision they overthrew over 100 years of precedent and allowed for the floodgates of  money to swamp our system.


I had hoped that the Court would have learned its lesson, given Justice Stevens'brilliant and eloquent dissent on Citizens United. However, Chief Justice Roberts ' attitude and curious ignorance of the subject raised my alarm bells. This is a court that decides by personal whim and prejudice. 


Yes, the Court's credibility will be damaged. But they don't seem to care. Judge Breyer walked out muttering in disgust today at the hearing.


So what will happen if the individual mandate is invalidated. Today, the judges were playing with whether to axe the whole bill,unilaterally vetoing the Congress' entire work, or allowing with noblesse oblige some elements to be accepted. 


Princeton's Paul Starr who has written about this issue for years believes health reform could survive this loss. But the New York Times' in its business section showcased the real father of the individual mandate--MIT's Jonathan Gruber. Gruber is the pioneer in modelling the intricacies of a "healthcare ecosystem", that description alone should tell you why Fat Tony Scalia hates the idea. It's too scientifically based, even for Opus Dei.


When he read the proceedings, he had heart palpitations. "Losing the mandate means continuing with our unfair individual insurance markets in a world where employer-based insurance is rapidly disappearing."


What this means concretely is that there will be about 8 more million insured, instead of the 32 million. It will set off a spiral where only relatively sick Americans would get insurance,premiums will rise causing healthier people to drop out and prices will go higher and higher, according to Gruber.


For the liberals among you, Senator Bernie Sanders said today that the public option had only 8-10 votes in the Senate. It was not a viable option then and not for the foreseeable future.