Justice Kennedy and the Myth of the Legal Neutrality

There is a powerful yet enduring myth in America that was shattered as the Supreme Court closed out its 2017 term.  That myth is that law and politics are separate, or at least that the law can constrain political choices.  With 5-4 decisions upholding President Trump’s travel ban, striking down mandatory public sector union fees, and the resignation of Justice Kennedy, that myth has all but collapsed.

The myth of the law was well described by nineteenth century writer Alexis DeTocqueville, who declared in Democracy in America  that:   “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”  This quote captures two aspects of the myth of law.  First, that at some point all political questions in America eventually turn into legal ones capable of resolution by the courts.  Second, judicial resolution of controversies means that the law  is capable of addressing political disputes, perhaps even permanently, if the decision was made on constitutional grounds.

This myth has played out several ways across American history.  One has been in assuming that the Supreme Court stands above politics and that when it decides it does so on the basis of what the law says, not ideology.  As Chief Justice John Marshall said in Marbury v. Madison, perhaps the most important case in American law: “It is emphatically the province and duty of the Judicial Department to say what the law is.”

The other way it has played out is in many groups placing faith in the judiciary as the guardian or protector of their rights.  They did so because they did not trust  real politics, such as elections and voting, as they way to secure t heir political objectives.  Again to quote another Justice, here Robert Jackson in West Virginia v. Barnette in writing the majority opinion striking down a law mandating the recitation of the Pledge of Allegiance: “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”   Law stands in opposition to politics, the former constraints that latter, making the judiciary the ultimate protector of abortion, gay, minority, and free speech rights.

Yet the increasing reality is that the law is not above politics, and the judiciary does not use it to resolve political questions, but instead decisions are political themselves.  Political science research  shows that more often than not votes by individual Justices reflect their personal political beliefs. In recent history, the best predictor of how individual Justices will vote is to look at which president appointed them.  In my own research on Justice Scalia, one could show clear biases in decisions based on the issue presented or the litigants in the case.  All of the above is similarly true with the current members of the Supreme Court.

But until 2000 the Supreme Court was able to manage its reputation and hide behind the myth of law.   But when in Bush v. Gore the Supreme Court decided the outcome of the presidential race, public opinion significantly split over it and it has widened since.  Surveys suggest declining confidence in the Supreme Court’s neutrality, and increasing Justices to many look more like politicians in robes.  Chief Justice Roberts, who said in his confirmation hearing that “My job is to call balls and strikes and not to pitch or bat,” looks like the manager of one political team of four  Justices playing against another team of four, dueling for the swing Justice Anthony Kennedy to pitch or hit for their team.

In his tenure on the Court Kennedy was the critical vote in cores of 5-4 cases.  In most years he was in the majority 90% of the time, and in  5-4 decisions, some years 100%.  For the last 30 years it has been Justice Kennedy’s court, as he held the balance of power and restrained the most extreme ideologies.  But even he revealed his biases.  In Citizens United v. Federal Election Commission the Supreme Court signaled after initial oral arguments that it wanted to decide a broader case than originally presented.  When it finally decided the case it ruled in favor or corporate free speech rights, seeing efforts to regulate corporations as censorship.  And now in Janus v. AFSCME, it ruled against unions, with Kennedy casting the critical fifth vote.

Scalia’s death, the delay in preventing President Obama from appointing a successor, Trump’s appointment of Neil Gorsuch, and now Kennedy’s retirement and the politics of his replacement only have or will exacerbate the demythologizing of the law, especially, and which is likely, Justices continue to vote ideologically as political science research suggests.  This is bad because  one of the last realms  where polarization and politics had not tainted government may be gone, leaving the public without any checks on the extremism that has marked contemporary politics.

Perhaps the only bright side may be recognition of the limits on constitutionalizing politics.  By that, one lesson that may be learned is that the judiciary is not the best or final place to turn advance a political agenda.    Elections matter, and groups may have to resort to the ballot box and politics to achieve power and protect their rights or advance their interests, and not rely upon the courts to do so.

Note:  This blog originally appeared in Counterpunch.

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.