The Republican justices on the U.S. Supreme Court behaved more like Fox News pundits than serious jurists weighing the constitutionality of an important law addressing the health of the American people. On Tuesday, they posed silly hypothetical questions of the sort that might boost TV ratings among Tea Party viewers but had little to do with the Constitution.
Based on their goofy and hostile questions, the Republican majority seems poised to strike down the core of the Affordable Care Act, the so-called individual mandate, an idea that ironically originated with the right-wing Heritage Foundation, was enacted by Republican Gov. Mitt Romney in Massachusetts, and only became a bête noire when President Barack Obama embraced it.
Now, despite the Constitution’s grant of broad powers to Congress to regulate interstate commerce, the five Republican partisans on the Supreme Court appear ready to kill the health reform law in the midst of a presidential election and deliver a body blow to Obama’s reelection hopes.
The core of their objections to the law was that if Congress can mandate Americans buy health insurance, it can do all sorts of other crazy things, like make people buy cell phones, broccoli, automobiles and burial insurance. (Or maybe make them wear funny hats and clown noses.)
Of course, what the Republican majority is ignoring with its bizarre questions is that there must be the political will for a majority in Congress to undertake any such legislation and that the President must sign the bill into law. The Constitution also gives Congress a virtually unrestricted power to regulate interstate commerce.
But rather than deal with practical political realities or even the intent of the constitutional framers, four of the Republican justices – John Roberts, Antonin Scalia, Samuel Alito and Anthony Kennedy – asked prejudicial what-ifs, the sort that could be applied to discredit virtually any legislation or legal argument.
Basically, they were asking: What if the most extreme and nutty interpretation of every law and ruling were applied mindlessly in every conceivable instance?
Yet, surely, they would not like it if such a goofball approach were applied to their prized rulings, like the 2010 Citizens United case which opened the floodgates for billionaires to spend whatever they wished for negative ads to tilt elections. What if one person possessed all the money in the United States and bought up every minute of advertising time on every TV and radio station? What then?
And what if the Republican logic in Bush v. Gore – that all states had to have equal voting standards and machinery in every precinct – were applied to all elections? Then virtually every elected official in the United States would be in office illegally and thus every law ever passed in the United States must be thrown out, possibly along with the justices of the Supreme Court who are nominated by the President and confirmed by the Senate. Gee, what if?
Naturally, that would be crazy talk, but really no crazier than the notion that Congress and the President would willy-nilly enact legislation requiring everyone to eat broccoli. That is reminiscent of the old right-wing canard that granting equal rights to women would force unisex bathrooms.
The one Republican justice who didn’t ask silly questions was Clarence Thomas, who as usual sat silently during the oral arguments. But his no vote on the law is considered a sure thing, since his wife has been out publicly rallying opposition.
According to the news reports from Tuesday’s Supreme Court oral arguments, it was Chief Justice Roberts who suggested that the government might require Americans to buy cellphones to be ready for emergencies. Alito asked about forcing people to buy burial insurance.
Scalia tossed in the notion of the government requiring Americans to buy broccoli or automobiles. “If the government can do this, what else can it … do?” Scalia asked.
“Can you create commerce in order to regulate it?” Kennedy asked. (Okay, it was my idea to throw in the funny hats and clown noses.)
U.S. Solicitor General Donald B. Verrilli Jr. tried to answer the silly questions by making the obvious point that enacting the insurance mandate would not open the door to these other notions because healthcare is a unique product, one that virtually every American will need in his or her lifetime.
“Virtually everyone in society is in this market,” Verrilli said, noting that if someone without health insurance gets sick the costs are transferred to everyone else. To prevent that – a burden equal to about $1,000 per American family – the Obama administration has argued that Congress was within its rights to establish a system for regulating health insurance including the individual mandate.
But Verilli’s reasonable responses didn’t stop the Republican justices from behaving like pundit-wannabes eager for a slot on Fox News.
There is, of course, the possibility that the Republicans were just showing off, giving Verrilli a hard time for the benefit of the Tea Partiers. It is true that in past cases, Roberts, Scalia and Kennedy have supported the federal government’s broad authority in regulating commerce.
And, sometimes, the justices don’t always vote in line with their public questioning. But it would seem odd for the Republican justices to ask their loony hypothetical questions in what looked like a bid to create public support for rejecting the individual mandate and then disappoint their right-wing constituency by upholding it.