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The judicial judo of Obamacare

By Benedict Coyne and Stephen Keim - posted Wednesday, 26 September 2012


The Commerce Clause Argument

The point on which the dissenters joined with the Chief Justice was in concurring that inaction in failing to purchase private health insurance could not be construed as a commercial activity able to be regulated under the commerce power. This concurrence of opinion, despite being of little effect in this case, maintains the need to fear the conservatives on the Supreme Court. It would indicate the likelihood of more decisions in the future like the 2010 decision of Citizens United v Federal Election Commission whose unrealistic confusing the spending of large sums of money with the exercise of free speech tore apart a long consensus on regulating election spending in the United States and is currently ensuring that those large sums of money are doing their best to distort the electoral discussions now underway in the United States.

The four dissenting conservatives (in a majority with the Chief Justice on this point) ignored the reality of the market which was to be regulated and declared that, if regulation of inactivity were deemed Constitutional, the power of Congress would excessively extend to making "mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity" (at 3).

Justice Ruth Bader Ginsburg and Constitutional Common Sense

Justice Ginsburg, with the agreement of her liberal colleagues, expressed the common sense view of the commerce power about which one might have been forgiven for thinking all controversy had been removed. The "inaction" distinction of the five conservative justices brings back memories of the conservative majorities which cut a swathe through the popular policies of the New Deal in the 1930s and brought President Roosevelt to the brink of embarking upon stacking of the Court.

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Justice Ginsburg pointed out that the approach taken by Congress was one that preserved active involvement of private enterprise and the States. Congress could have legislated for a tax that allowed the government to completely take over the role of providing and funding healthcare.

Justice Ginsberg also set out the significance of the free riding of healthy, well off young people who would avoid medical insurance until their later years thereby placing a burden on the rest of the community by failing to make a contribution. Because of its free riding nature and its extraordinary effect on the health and health insurance markets, Justice Ginsburg pointed out that those refusals to buy medical insurance were as much part of the market as the subsequent actions of the same people to buy both insurance and health care when it suited them.

Justice Ginsberg referred to the Chief Justice's "narrow" reading of the Commerce clause as "rigid" (at 2), "crabbed" (at 2) and "disserving future courts" (at 35) and accused him of employing "specious logic" in accepting the "broccoli argument" (which her Honor refers to as the "broccoli horrible" at 30). The broccoli argument concerned an analogy that taking a realistic view of a refusal to buy health insurance until middle age was the same as penalizing a shopper for refusing to buy "healthy" broccoli at the supermarket.

In a nice piece of ideological prose, Justice Ginsberg accused Chief Justice Roberts of using the commerce clause against the interests "of those who labor to sustain it", that is, the bulk of the populous, working class Americans.

Waning Popular Approval of the Court

As a result of his switch stance and novel argument Roberts has been pilloried by the right and fallen out of favour with conservatives. But it is the conservatives that have given the Court a bad name in recent times, with public approval at an all-time low. As the New York Times reported:

More than half of Americans said the decision in the health care case was based mainly on the justices' personal or political views. Only about 3 in 10 of them said the decision in the case was based mainly on legal analysis.

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The legitimacy and integrity of the Court has been called into question in recent history. As well as the decision in the already mentionedCitizens United decision,the court has been perceived as acting in a partisan manner in the Bush v Goredecision. This has led some to speculate that getting back in touch with the people was the motivation for the Chief Justice to side with the liberals upholding the key aspects of Obamacare.

Conclusion

The real question for the future is whether this decision signals a changing attitude and a new majority on the Supreme Court or whether it will be back to normalcy with only Justice Kennedy's occasional liberal moments to save the United States and the rest of the world from the four extreme conservatives on the court? The world can ill afford continuing conservative attacks on the sensible operation of democratic processes in the United States.

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This article was first published in Justinian in August.



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About the Authors

Benedict Coyne is a National Committee Member and Queensland Convenor of Australian Lawyers for Human Rights (ALHR). He completed a graduate law degree at Southern Cross University graduating with first class Honours and the University Medal amongst other awards.

He had an incredibly interesting year in 2011 as Associate to the Hon Justice Bromberg at the Federal Court of Australia in Melbourne, including hearing (and substantially researching) the Eatock v Bolt case. He was admitted to practise in Victoria in November 2011 and is currently a lawyer in the new major projects and class actions department of Maurice Blackburn Lawyers in Brisbane.

He enjoys writing and performing poetry in his spare time.

Stephen Keim has been a legal practitioner for 30 years, the last 23 of which have been as a barrister. He became a Senior Counsel for the State of Queensland in 2004. Stephen is book reviews editor for the Queensland Bar Association emagazine Hearsay. Stephen is President of Australian Lawyers for Human Rights and is also Chair of QPIX, a non-profit film production company that develops the skills of emerging film makers for their place in industry.

Other articles by these Authors

All articles by Benedict Coyne
All articles by Stephen Keim

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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