Missing From the Court’s Debate: The Constitution

March 30 (Bloomberg) -- Now that the Supreme Court has mercifully completed its three days of oral arguments over the constitutionality of the Affordable Care Act, we can pause for a moment and take stock -- not of the statute, but of the justices and our attitude toward them.

Let me put the point succinctly: Our court-worship has gotten ridiculous.

Predictions abound about whether the court will hold the statute’s individual mandate unconstitutional. The week before oral arguments, a survey of former law clerks and lawyers who have argued before the court put the likelihood at 35 percent. (Why anyone would dignify such a question with an answer remains the more intriguing mystery.) The day after oral arguments, participants in Intrade’s prediction market had it at about 63 percent.

Some of these predictions undoubtedly rest on the vulgar assumption that the justices are mere political hacks, doing the bidding of party. But some are clearly based on the questions asked at oral argument. That approach strikes me as bizarre.

When I was a Supreme Court law clerk in the early 1980s, I witnessed counter-examples galore. Once, in a particularly tricky civil-rights case, two justices spent the oral argument lobbing softballs at the attorney for the plaintiffs, but voted with the 6-3 majority against his clients. Another justice was well-known for his habit of peppering the solicitor general with tough questions, but voting with the government anyway.

Powerful Demigods

In short, trying to guess the outcome from the oral arguments is a fool’s game. But such silliness is fully in keeping with our attitude toward the justices -- who, reviled though they frequently are by activists of one stripe or another, continue their firm grip on our collective imagination. For all our cynicism and sophistication, we still seem to consider the court, as Anthony Lewis wrote almost half a century ago, “an extraordinarily powerful demigod sitting on a remote throne and letting loose constitutional thunderbolts whenever it sees a wrong crying for correction.”

Small wonder, then, that the political debate over the Affordable Care Act and its individual mandate has landed there. The oral argument transcripts are illuminating -- not on any great questions of constitutional law, but rather on questions of policy.

The argument was pressed with considerable distinction by Solicitor General Donald Verrilli, on behalf of the government, and former Solicitor General Paul Clement, on behalf of the plaintiffs. On the day that mattered -- Tuesday’s battle over the individual mandate -- both men scored excellent points. But nearly all of the points related to wisdom, not constitutionality.

Under sharp questioning from Justices Antonin Scalia and Samuel Alito, the weakest point of the mandate was laid bare. The 26 states arguing against the law are at least half right. The scope of the power being claimed is scary. The claim on behalf of the mandate is that individuals who do not buy health insurance will nevertheless consume health-care services, possibly very expensive ones, and therefore are affecting commerce -- the insurance industry for others -- even if they choose not to buy. The chain of reasoning is perfectly logical.

Yet nothing in the oral argument adequately refuted the fears of the opponents that the government could require people to buy broccoli or mobile phones in the right situation. Justice Sonia Sotomayor did the best job of anyone in trying to recast the solicitor general’s argument in a more palatable form, contending that those who don’t buy health insurance in the market are really just self-insuring, and the government can regulate self-insurers. Chief Justice John Roberts subsequently pointed out that the statute requires coverage of maternity services, pediatric services and drug treatment services -- in each case, items against which one might reasonably choose to self-insure.

How Insurance Works

Both sides have a point. The mandate to purchase health insurance does indeed run counter to the libertarian strain of the American tradition, and the arguments in support of federal power don’t have a logical stopping place. On the other hand, one must also recall the egalitarian aspects of the American tradition. Without the mandate, the provisions that insurers can’t turn away applicants on the basis of pre-existing conditions will collapse. As Justice Ruth Bader Ginsburg said on the second day of argument, “If you’re going to have insurance, that’s how insurance works.”

This bit of complexity leads to epistemic difficulty. A young philosopher of my acquaintance says that she supports the must-cover provisions of the new law, which require insurance companies to cover people with pre-existing conditions, but opposes the mandate, and was left gloomy by the difficulty of holding both positions.

The dilemma is a weighty one, and arises because both propositions have force. There is no “correct” balance between liberty and equality. The arguments are in the first instance philosophical, and in the second political.

The only answer I can offer is that we are supposed to thrash those things out in politics. Let us concede that in the case of the Affordable Care Act, the thrashing was badly done. The thing was well intentioned, but horribly drafted and horribly rushed. The political debate, so far as I can tell, consists mostly of politicians and pundits and authors of fundraising e-mails insisting that the other side is lying about the intent of the law or the contents of the statute.

I suspect that an awful lot of the politicians and pundits claiming that the other side is lying about the act’s provisions haven’t read it. (I ask as often as I can, and the answer, almost without exception, is “no.”) I once attended a debate on the law, sponsored by a perfectly reputable organization, where it seemed to me that neither debater had actually looked at anything but the talking points prepared by the relevant side.

Reading Assignment

I have read the act. All 974 pages. Every mind-numbing repetition of “the Secretary shall promulgate” and “the Secretary shall determine” and “the Secretary shall establish” -- language that has the political virtue of shielding members of Congress from responsibility, and the constitutional vice of creating an entitlement whose boundaries its supporters can make no serious pretense of understanding.

What is clear from the three days of argument is that the justices and the advocates are intimately familiar with the law and its legislative history. I’m glad that somebody is.

The trouble is that the real battle is ideological, not constitutional. Not everyone is going to get every possible form of health care. Somebody, in the end, is going to ration it. The rationing may be done mostly by regulators and a little bit by the market, or mostly by the market and a little bit by regulators. As long as we are mortal -- as long as our bodies fail -- there is no third choice. No amount of screaming will produce one.

No matter which way the court rules, the question of how best to provide health insurance will wind up back in the laps of our elected representatives. Politics at its best comprises reasoned arguments by reasonable people. When the justices toss this battle back to the politicians, let’s all hope for less shouting and more thinking.

(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama,” and his next novel, “The Impeachment of Abraham Lincoln,” will be published in July. The opinions expressed are his own.)

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To contact the writer of this article: Stephen L. Carter at

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