US Politics Opinion: Getting Mad at the Supreme Court Over ObamaCare

On Wednesday afternoon, after three days of closely-watched argument, the Supreme Court ended its hearings on the question of whether certain provisions of the Affordable Care Act --- colloquially known as Obamacare --- are constitutional. Their verdict is not expected for several months, but if the analysis in the media from dedicated court-watchers is a reliable indicator, then the signal achievement of President Obama's first term is doomed to defeat.

Other analysts, however, are urging caution in predicting the result, warning that it is impossible to know what individual Justices are thinking from the questions they ask of the lawyers before the Court. A number of other commentators, including Lyle Denniston at the widely respected SCOTUS website, see some hope that the Supreme Court will uphold the President's sweeping reform of America's health insurance market.

This divergence in contending views is no surprise. What was diverting, however, was the wider political bickering as it became clear over the three days that the future of the ACA was in doubt. If no one knows how the Court will rule, this has not stopped some newspapers from taking an almighty swipe at the objectivity of the Justices.

In Wednesday's print edition, The New York Times published an editorial lambasting certain judges for daring to question the constitutionality of the "individual mandate" of the Act: these Justices were “willfully” rejecting “established constitutional principles that have been upheld for generations". An editorial on Tuesday was not quite so critical of individual judges, but concluded by warning the Court, “It is imperative that the justices interpret the anti-injunction law so that the ruling in this case is consistent with what makes sense in conventional tax cases.”

At The Washington Post, the editorial team was quieter, but the opinion pieces published by the paper have predominantly attacked the Court for its claimed bias with the prospect that the ACA will be struck down. Immediately after the hearings concluded, the Post led its opinion section with a piece by E. J. Dionne, "Judicial Activists in the Supreme Court". It began, "Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature", and concluded that if the law is declared unconstitutional...

...a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.

And liberals wonder why conservatives froth at the mouth when they accuse the mainstream media of being nothing more than a mouthpiece for the Democratic Party?

Far from being on the fringe of ideology, any Court scepticism matches polls that consistently show most Americans believe the individual mandate is unconstitutional. A recent Kaiser Family Foundation 'Data Note claimed, “While the precise share of the public with a favorable or unfavorable view of the individual mandate varies slightly between polls, each survey finds that overall sentiment is about two to one in opposition to the mandate.”

Yet Katrina van den Heuvel writes, "Republicans Are Causing a Moral Crisis in America", and argues: 

It’s hard to point to a single priority of the Republican Party these days that isn’t steeped in moral failing while being dressed up in moral righteousness. This week, for example, they are hoping the Supreme Court will be persuaded by radical (and ridiculous) constitutional arguments to throw out some or all of the Affordable Care Act.

Progressives have always tended to be enraged when their will is thwarted by the Courts, and if the law is actually struck down it will be interesting to see what remedy they propose to restrain an obstructionist Supreme Court. Theodore Roosevelt wanted to recall Justices who thwarted the will of the legislature.  For Franklin Roosevelt, the remedy was "Court-packing" with the naming of more, presumably correct-thinking Justicies. Who knows what President Obama, in a second term, might put forward?

Then again, the other noteworthy development is about the means Obama could employ to reform healthcare without having to worry about the Supreme Court. For example, he could institute universal access to health care, paid for by a tax. As with the current system of Medicare, this would be perfectly constitutional under the taxing authority of Congress.

Liberal media outlets have been quick to promote this alternative vision. Former Labor Secretary Robert Reich promoted the virtues of Medicare for all  --- but only achievable after a bit of political jujitsu by the President -- in The Huffington Post. George Zornick posted a piece in the Nation which headlined the case succinctly, "If the Mandate Fails, Single Payer Awaits": “That’s no doubt going to be a focus for progressives in coming years --- and, paradoxically, the death of the individual mandate might aid that effort.”

And as E.J. Dionne noted in comment about the supposed activism of the Court:

The irony is that if the court’s conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system. Justice Anthony Kennedy even hinted that it might be more “honest” if government simply used “the tax power to raise revenue and to just have a national health service, single-payer.” Remember those words.

It has been a distressing three days in the Supreme Court for liberals who, two years ago, initially scoffed at the suggestion of a constitutional challenge to the ACA. They have not reacted in with the consideration that they so often mock conservatives for lacking.

The reality is that there is a credible case for the individual mandate being unconstitutional. Condemning the Court, before it has even made a decision, is an evasion of the legal process --- whatever the eventual decision --- and it is poor politics, especially in an election year. There are alternatives for those seeking wider provision of health care, but they will disappear without an Obama second term.