Amy Coney Barrett, and her Originalism: Why Individual Rights Lose

 Supreme Court Justice nominee Amy Coney Barrett is a threat to many constitutional precedents,

including Roe v. Wade (abortion rights), National Federation of Business v. Sebelius, (Obamacare), and Obergefell v. Hodges (marriage equality).  It may not simply be her ideology or pre-judged opinions that pose the problem, it is her constitutional interpretive method of Originalism that is the issue.

The foundation of the US legal system is strongly based on the concept of legal precedent.  Judges when interpreting the law or the Constitution are supposed to respect past decisions when there are similar facts.  “Like cases are to be the same” is the rule.  Respect for legal precedent is founded on the idea of stability, consistently, and the belief that people have relied on the law to operate in a certain way and it should not change unexpectedly.

Departure from precedent is supposed to be an exception and not a rule.  When it comes to constitutional precedent, the Supreme Court has only reversed itself 147 times in history.  Historically the justification for reversing constitution precedent was that the prior decision  proved no longer to be workable or that  the conditions under which it was decided had so changed that the factual basis for it had been undermined.  Precedent could also be rejected if new facts pointed to the lack of viability of the old decision.  Deference to constitutional precedent historically was firm even though the Court has said it should not be given as much respect for statutory precedent because the latter would be easier for Congress to overturn or overturn if the Court made a mistake.

Up until the Warren court of the 1950s and 1960s, rarely were past constitutional law decisions by the Supreme Court reversed by a later decision.  From 1788 until 1953 there were a total of 49 reversals.  Since 1953, 98 reversals, with 76 coming since Richard Nixon sought to push the Court ideologically in a conservative direction.  The big change came in 1986 when William Rehnquist became Chief Justice and Antonin Scalia an Associate Justice.  

Scalia especially brought to the Court his theory of constitutional interpretation called Originalism.  This theory said that in order to limit the discretion of judges in making policy or substituting their own opinions for that of elected officials, they should interpret the Constitution in terms of the intent of the Framers.  Intent could be ascertained by looking at the plain language of Constitution and dictionary definitions of terms used in it by the Framers at the time they wrote.  Historical documents, such as the Federalist Papers, could also be deployed.  For Justices such as Scalia, Originalism guaranteed the Constitution and Bill of  Rights had their meanings anchored in time, providing stability and certainty.

While elegant in theory, in practice Originalism is flawed in  many ways.  It assumes the Framers were of one mind when they drafted the Constitution.  It naively believes that one can reconstruct the past accurately to ascertain historical intentions and apply them to a world they could not envision.  It falsely assumes a theory of history no longer accepted by historians that one can simply recount the past by “telling it like it was.”  It overlooks that many of the Framers were slaveholders and the original document embodied believes and assumptions most of us now reject. But the major problem is that Originalism  does two damaging things:  One it ignores rights.  Two, it threatens constitutional precedent.

Antonin Scalia’s Originalism was not politically neutral.  Scalia was conservative, everyone knew that.  In my books and many articles on him I demonstrated a pattern to his decisions based on the issue or the litigant.  Others who study the Court and Justices have shown that too.  One theory is that Originalism is simply a tool to mask or justify conservative outcomes. But alternatively, Originalism locks the Constitution in time to 1787 when it was drafted. This was a time when, as former Justice Thurgood Marshall once said, the first three words of the Constitution “We the people” excluded women, people of color, the poor, and those who were not Protestant.  The concept of rights and who had a  voice in the American republic has evolved.  Originalism ignores this.  It freezes rights in time, ignoring  how,  to paraphrase what the Supreme Court once said in Trop v Dulles that the law’s meaning must be looked at through the “evolving standards of decency that mark the progress of a maturing society.”  Originalism ignores this evolving decency, how our conception of what free speech, privacy, or  equality means have evolved over time, and what it means to be a democratic republic.   When Originalism confronts modern rights, the latter generally lose.

But an equally fatal defect of Originalism is found in how it fails to understand the role of precedent in the law.  There may be an original Constitution that had some meaning, but over time  it has been interpretated, creating precedents to guide judicial reasoning.  The meaning of the Constitution and the Bill of Rights includes these precedents.  Since the 1980s, and especially now under the Roberts Court, the Originalists, including Justices Thomas and Alito as seen recently in a case where they expressed disagreement with the way Obergefell was decided, have  expanded the grounds for the overrule of precedent.  They repeatedly quote the phrase “precedent is not an inexorable command” and that if a decision were simply wrong or badly  or insufficiently reasoned, that is grounds to overrule it.  Originalism ignores how the law evolves and grows, and it runs roughshod on the settled expectations of what the law has come to mean.  It rips the law out of its contemporary context and meaning.

Amy Coney Barrett is an Originalist, a student of Scalia.  No matter what assurances she gave to the Senate about remaining open-minded to precedents,  either her past comments on the law, her legal opinions in cases, her ideology, or her interpretive method question her fidelity to precedent. Like her mentor she argued in a 2013 Texas Law Review Article that precedent need not always be followed and in her list of “superprecedents”—supposedly cases that could never be overruled—she excluded Roe v. Wade.  By her own analysis respect for precedent is a self-imposed restraint on the Court, not something they have to necessarily follow, and her Originalism, like that of her mentor Scalia, is either a façade for her political views or a method inherently hostile to rights.

 

Bets on the Health Care Decision (Obamacare)

Should have done this sooner but any bets or predictions on the health care vote and decision or tomorrow?  Reporters have asked me repeatedly for predictions.

I say either 6-3 to uphold the individual mandate (Roberts majority opinion) or more likely 5-4 to strike down the individual mandate on commerce clause grounds (maybe upheld on taxing authority). Everyone here predicts here that Kennedy writes the opinion and safe money is here.  However, given the AZ v. US opinion, I go with a less orthodox answer with Roberts also as the author.  The case was badly argued and based on that Obama should lose but precedent is with the government on this.  I say 55-45 probability that the mandate is gone.  Precedent is not in favor with this Court.

The rest of the law remains in place.  Kennedy will not upend that many settled expectations (see the Planned Parenthood v. Casey decision on this).

Low probability of dismissal on ripeness or rescheduling for a new hearing.

Other bets:
Broccoli is mentioned at least 5-6 times in the various decisions.

Scalia rails on and on no matter the outcome.

The final decision is 150+ pages.

Thoughts?

This is the most difficult prediction I have ever had to make.

The Supreme Court and Health Care: What's Next?

Barring a miracle, the individual mandate in the Obama health care act is dead. But even another possibility exists that the entire law may be voided by the Supreme Court. This should have never gotten to this point.  But what if the act is struck, what then?

The Patient Protection and Affordability Health Care Act (Obamacare or the Obama health care act “OHCA”) was always a flawed act to start. Yes it ensured an additional 36 million individuals and that was great. Yet it excluded universal coverage still leaving several million without health insurance.  Yes the law also requires insurers to issue policies to those with preexisting illnesses and to allow parents to keep their children until age 25 on their policies, but there was little in the law to deal with the cost issues. The government would still be barred from negotiating with drug companies for better prices, private insurance companies would face little market competition, and the vast administrative costs that the current system produces would not be addressed. All of these problems rendered OHCA a flawed piece of legislation.

Yet flaws like these make it bad legislation but not unconstitutional. The reason the law is before the Court is because it is a Republican idea.  The individual mandate is originally a Republican idea offered in place of the single-payer option.  Obama embraced it and the Democrats pushed it through Congress with barely a Republican vote.  The latter turned on the individual mandate after trumpeting  it, and now they are calling their idea unconstitutional. How ironic. Even more ironic is the fact when the Supreme Court heard the case last week one of the Justices even suggested that the way to get around the possible constitutional problems was to adopt a single-payer system.

Following the hearings last week was amazing. The OHCA is a lesson in sloppiness. The Solicitor General who argued the case before the Supreme Court was weak. Going into orals anyone who knew anything knew that the central issue and most important question to answer for the Court was to indicate what are the limits of the Commerce clause. Specifically, since the authority for the individual mandate rested on whether health care came within the realm of interstate commerce that Congress could regulate, the government needed to show that it had the power to act. But in demonstrating that, one knew Justice Kennedy–the swing vote–for example, would want to know if there are any limits to the Commerce clause if the individual mandate were upheld.

Solicitor General Verrilli failed to answer this question. He had an easy answer. He could have pointed to a 1992 decision United States v. Lopez where the Court struck down a provision of the Gun-Free School Zones Act of 1990 as exceeding federal commerce powers, and to a 2000 Court decision in United States v. Morrison where it struck down a  provision of the Violence Against Women Act of 1994 as exceeding federal commerce powers. He could have said these two cases established the outer boundaries of the Commerce clause, articulated the reasoning in them, and he would have done his job. Instead, he gave an opening to Justice Scalia to ask stupid questions about the federal government mandating people to buy broccoli under the Commerce clause. We should have never gotten there.

Additionally, the hearing on severability should have never taken place. The severability issue is over whether if the individual mandate is struck the entire law is dead.  A general piece of boilerplate attached to bills is a severability clause stating that if the courts declare any part of the law unconstitutional the section voided would be severed from the rest of the law, preserving it.  One would have thought in a 2,000 page law this boiler plate would have been in it, but it was not.  Sloppy.  Thus the real possibility of a Court voiding the entire law.

But the Court itself has also been sloppy here. Clarence Thomas should have recused himself from the case because of his wife’s political activities in opposition to the law. Similarly, a case can be made that Justice Kagan too should have recused herself because of possible involvement with the law at the Justice Department. But this is also a Roberts Court that is perhaps the most conservative Supreme Court since the 1930s, and its excesses in this and other recent ones such as Citizens United strip away any veneer that conservatives do not engage in judicial activism.

But what is the law is voided, where are we? At present the United States spends 18% of its GDP on health care and with Baby Boomers aging, it is projected to increase to perhaps 20%. With the United States current GDP at $15 trillion in 2011, total health care spending is $2.25 trillion. America has the most costly health care system in the world, both in real dollars and in GDP percentage. The Netherlands is second in terms of percentage of the GDP spent on health at 12%. The US spends an average of $8,000 per person on health care, other developed countries about $2,000. They also achieve what we do not–universal coverage–and often have higher life expectancies, lower infant mortality rates, and generally better health care outcomes than we do. Out system is expensive and it does not deliver the goods, unless you are well insured.

But defenders of the American health care system love to point to freedom. They say our current system maximizes choice. They love to point to stories about people in Canada flocking to the US for coverage or for long waits in line for elective surgeries such as nose or boob jobs. Yes this may be true and perhaps other problems exist, but how much choice do we really have in the US? For those without healthcare, how much choice is there? For those in HMOs how much choice is there? The reality is there is little health care choice for millions in the USA.

Reforming health care is critical to the future of the US economy. Image if the US spent only 12% and not 18% of its GDP on health care. That would save the country $750 billion per year? What could we do with that money? Pay down the debt, cut taxes, invest in roads and schools, or more. Solving the health care crisis is still going to be with us after the Supreme Court rules, Republicans take over, or Obama remains in office.