Today, the Supreme Court took on health care, and, by commentators' accounts, it wasn't pretty. The transcript is available here. Some snap thoughts:
1) The Solicitor General, Donald Verrilli, didn't do a very good job advocating the law today. Surprising, given that he's a perfectly good attorney. But the line of questioning from the usual suspects (Scalia, Alito) was predictable, and he didn't seem too well-prepared. A lot of the time, reading the transcript, I thought the left-leaning justices (Ginsburg and Breyer especially) did a better job of advocating the law than Verilli did.
2) Having said that, I'm somewhat surprised at how hostile some of the conservative justices were toward the law-- everyone and their mother knew Clarence Thomas wouldn't be voting to uphold the mandate (since he's stuck somewhere in the 19th century), but, going in, I thought Scalia (given some of his past votes in commerce clause cases) and Chief Justice Roberts were possibilities to vote to uphold. I thought a 7-2 decision with Thomas and Alito in dissent wasn't out of the question. Now, Scalia is an absolute no, and the swing justice, Anthony Kennedy, seemed pretty hostile, especially when Verrilli was arguing the case.
3) The decision certainly comes down to how Kennedy's feeling. And Kennedy is a very unpredictable vote-- he has long, philosophical debates in his head, then makes decisions based on the weather. OK, maybe that's a little unfair, but only a little. He didn't seem to internalize the arguments in the briefs, and looked like he wanted to find a "limiting principle" for restricting the government's power to regulate commerce. Never mind that the "limiting principle" was staring him straight in the face in the brief... Having said that, if Kennedy goes along, I think Chief Justice Roberts will too. Roberts absolutely wants to strike down the law, but if it gets upheld, I'm almost certain he'll join the majority so that he can write the majority opinion. Otherwise, I think it's a 5-4 decision with the predictable justices (Breyer, Ginsburg, Sotomayor, and Kagan) in dissent.
4) The limiting principle that Kennedy is looking for should be pretty straightforward. Health care is the only market that 1) everyone in the country besides Christian Scientists participates in, 2) has expenditures that are necessarily unpredictable, and 3) is provided to everyone as a matter of course. While it's true that there are certain markets with 100% participation, health care is the only one in which participation is mandatory. Take something like food-- everyone who is alive eats, but if I show up to the grocery store starving, the grocery store doesn't have to feed me. Contrast that with health care. Insurance or not, if I get hit by a bus tomorrow, I'll be taken to the hospital, I will be given emergency surgery to keep me alive, if my bones need surgery to be repaired, it will be done, and if I need pain medicine, I will get it. If I don't have insurance and don't have the funds to pay for my medical care... the hospital will swallow the costs. Except that it won't. It will raise prices for those who can afford to pay. In turn, insurers (who end up bearing those costs) will raise premiums. In other words, those who do have insurance will subsidize those who don't.
The government, then, can very clearly regulate market participation, even if it can't mandate participation. But, even if I don't consume any medical services for 10 years, I'm still a market participant because I am always a potential consumer of medical services, since I will be treated in hospitals regardless of whether I "choose" to be (or regardless of whether I can pay). That isn't the case in many other markets. The government can't, then, require that I buy a cell phone or that I buy a car or that I buy broccoli, as the conservative justices disingenuously suggested, because I'm not necessarily participating in those markets. Right now, I ride the subway everywhere. I am in no way in the auto market, even though I undoubtedly consume transportation services quite frequently. Similarly, I communicate with plenty of people, but I don't necessarily consume communication services. And, even though I'm in the food market multiple times a day, my participation is regular, it's predictable, and it's not necessary-- no one is providing me with food regardless of my ability to pay, and no one is required to feed me if I'm starving (though we tend to think it's a nice thing to do).
So distinguishing health care is easy, and the opinion should write itself. Now we'll see if Kennedy wakes up on the right side of the bed in June...
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