Bench Players

Activist judges vs. health-care reform

Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee. 

Senator, excuse me, Justice Samuel Alito quoted [.pdf] Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress "wouldn't have been able to put together, cobble together, the votes to get it through." Tell me again, was this a courtroom or a lobbyist's office?

It fell to the court's liberals -- the so-called judicial activists, remember? -- to remind their conservative brethren that legislative power is supposed to rest in our government's elected branches.

Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about "the merits of the bill," a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible "in the hands of the people who should be fixing this, not us." It was nice to be reminded that we're a democracy, not a judicial dictatorship.

The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health-club memberships, cellphones, burial services, and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others -- often taxpayers -- have to pay for.

Liberals should learn from this display that there is no point in catering to today's hard-line conservatives. The individual mandate was a conservative idea that President Obama adopted to preserve the private market in health insurance rather than move toward a government-financed single-payer system. What he got back from conservatives was not gratitude but charges of socialism -- for adopting their own proposal.

The irony is that if the court's conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system. Justice Anthony Kennedy even hinted that it might be more "honest" if government simply used "the tax power to raise revenue and to just have a national health service, single-payer." Remember those words.

One of the most astonishing arguments came from Roberts, who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited "pediatric services" and "maternity services." 

Well, yes, men pay to cover maternity services while women pay for treating prostate problems. It's called health insurance. Would it be better to segregate the insurance market along gender lines?

The court's right-wing justices seemed to forget that the best argument for the individual mandate [.pdf] was made in 1989 by a respected conservative, the Heritage Foundation's Stuart Butler. 

"If a man is struck down by a heart attack in the street," Butler said, "Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services -- even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract."

Justice Antonin Scalia seemed to reject the sense of solidarity that Butler embraced. When Solicitor General Donald Verrilli explained that "we've obligated ourselves so that people get health care," Scalia replied cooly: "Well, don't obligate yourself to that." Does this mean letting Butler's uninsured guy die?

Slate's Dahlia Lithwick called attention to this exchange and was eloquent in describing its meaning. "This case isn't so much about freedom from government-mandated broccoli or gyms," Lithwick wrote. "It's about freedom from our obligations to one another...the freedom to ignore the injured" and to "walk away from those in peril."

This is what conservative justices will do if they strike down or cripple the health care law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.      

(c) 2012, Washington Post Writers Group

Photo: Wikimedia Commons

Related: Tyranny? by the Editors
Is the Contraception Mandate Constitutional? by Joseph D. Becker

About the Author

E. J. Dionne Jr. is a syndicated columnist, professor of government at Georgetown University, and a senior fellow at the Brookings Institution. His most recent book is Our Divided Political Heart: The Battle for the American Idea in an Age of Discontent (Bloomsbury Press).



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A political put down of the heathcare law will  tarnish the rep of the SC for years. Righties who always are boasting  of protecting the Consitution will stand by and watch as the third  branch, the SC, is looked upon by the citizens, far into the future. .  as a court staffed by party hacks. Say hello to the Mexico judicial system

Thank you EJ, for expressing my thoughts. As I look at everything around me, it is all stunningly political.  The government no longer works for the people. We see redistricting, voter suppression and shameful amounts of money being used to drown the voices of the people. The Church has moved into the arena, tuning their back on the people they say they care about the most.  The Supreme Court has opened the door to even greater corruption by allowing unknown money into our elections. And now, they seem to want the Affordable Care Act to be strictly a political discussion.  While ACA is far from perfect, this should not be in the Supreme Court. It needs to be fixed by adults in Congress who hopefully have the knowledge about healthcare to get it right. Something this major should not be struck down by this political group. Clarence Thomas has not opened  his mouth but he will be there to cast his vote.  How he gets away with his actions outside of the Court seems horribly wrong.  Every day we become less of a Democracy.

This is so specious, EJ., and in need of distinctions. Judges are supposed to be "activists" for the sake of upholding constitutionality. Judicial activism is often misunderstood to mean anything other than rubber stamping what the other branches do, but if that's the case, why have an independent judiciary at all? Both liberals and conservatives should unapologetically make sure laws don't violate the rights articulated and implied by the constitution, and if that makes them activists, so be it. The "judicial activism" we should rightly reject is the activisim that uses the judiciary to create legislation, but merely questioning what congress does is not activism.

Benjamin -- E.J. wasn't accusing the justices of activism because they're engaging in judicial review, which is a proper role for the court, but because they're diving into issues not of constitutionality but of policy. The former is their job, but the latter is not.

Wow, Dionne defending Obama? ... Justice Kennedy pointed out that if the Court struck down only part of the law, and the result was increased risk for insurance companies “that Congress had never intended… we would have a new regime that Congress did not provide for, did not consider [and it could] be argued at least to be a more extreme exercise of judicial power than…striking the whole [law].” That was the point of the budget references, which Dionne doesn't know? What's Dionne's solution to that problem? What's Dionne's argument for compelling commerce, rather than regulating it? Is everything conservative judges do "activism" or might it actually be correct? Dionne doesn't know.


It comes down to a matter of TRUST.  Most (over 50%) of the American people, including myself, do not trust any branch of the government and any political party. Why? Because they never tell the truth!  It was not always this way. Almost a year ago I wrote on this blog that Obamacare would cost at least twice as much as was stated and it has now been proved true. The response by Commonweal bloggers was "you don't know that"! That was 23 years a of life experience working in the Department of Justice that provided me that insight.  Since the Right is being targeted in Commonweal, what about the moral ramification of Sotomayor (who provided legal input to the President on the healthcare issue) remaining on this case?


What is the word for our system of government, ideocracy?  A government by ideologues. The Court did seem way too prone to go with their gut feelings or unexamined beliefs.  Having a number of Catholics helped some but not enough. Lack of concern for those in need seemed to carry the three days. The topper was Scalia's flippant and cavalier dismissal of  the church's clear social justice message about caring for the poor and vulnerable and unprotected. Jesus Mary Joseph help us.     

This piece seems to be a case of the "pot calling the kettle." A long history of liberal activist judges may now be facing a shorter, but no less disturbing, regime of activist conservative justices. Let's pray that, whatever the decision, our Supreme Judges judge on the basis of sound constitutional reasoning, rather than politcal expedience.

You don't have to be a conservative Republican to have questions about the individual mandate.  The IM is devised as a means for increasing the size of the insurance pool by bringing in the young and healthy, preventing 'buy when sick',  and as necessary to prevent insurance exclusion for pre-existing conditions, all while preserving the private sector nature of our health care delivery system.  A better solution is 'single-payer,' but that was politically impossible to attain.  It is an inelligant solution, of dubious constitutionality.  It will probably be struck down, and the public good that was intended by the legislation will be pushed our far into the future again.  Republicans promise a workable alternative (repeal and replace) but that will be a joke centered around Tort Reform.  This is a political failure for both Parties and a failure of our political process. 

If this weren't my only computer, I'd drop it, I'm laughing so hard. Poor Mr. Dionne, who suddenly perceives an activist court acting as an alternate legislature. Of course, what he fears is not "activism," but, in the spirit of Marbury v. Madison, the court's ruling on the constitutionality of a statute.

Mr. Dionne thinks it's fine when the court creates new rights for government, steamrolling over those protected by the Tenth Amendment, but trembles when a right of a free people might be protected against the Leviathan.

The Catholic Left has run out of gas. Except for laughing gas, which it provides aplenty.

So much for Ethics!

For goodness sake, and I do mean for goodness sake, hang in there E.J.  It was in point of fact the efforts  between the law and the theologians of the time that provided not merely the means but the necessity for attempting to place beyond human reach the very fellow upon which Catholocism as a faith is built.  A third more frightening possiblity exist, of course.  It was a result of a sizeable mob unable to grasp the effectiveness and the likely outcome of their efforts.  When a signficant number of active participates in a grand cause are unable to grasp the reality that reason and compassion simply cannot stand alone but absolutely rely upon each for their usefulness, the result can be the opposite of their stated mission framed so cleverly by those convinced beyond debate Christ can be found whole in the efforts of market research if not in a precedence of utterly human behavior.

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