SCOTUS Reality Tour

 

By now you’ve seen the sensational headlines:

And so it goes.

Before we start dancing in the streets, let’s face a little reality. One man, it seems, holds the fate of ObamaCare in his hands.  And that man does not necessarily believe the Constitution to be law, but guiding principle. 

That one justice, Anthony Kennedy, seems to be looking for a reason to uphold ObamaCare and the individual mandate. Here’s what Orin Kerr at Volokh Conspiracy observed:Anthony Kennedy

Reading the tea leaves, it sounds like Justice Kennedy accepts the basic framework of the challengers that mandates are different and especially troubling. Instead of saying that mandates are therefore banned, however, Justice Kennedy would require the government to show some special circumstances justifying the mandate in each case. The answered question in this case is whether the special economics of the health care market justifies the mandate here.

What’s disturbing to me and other written-constitution types, is this: If the Constitution means anything, “special circumstances” don’t exist.  If we are a nation of laws, heavy justification goes out the window. 

I hope I’m wrong—not about what Kennedy’s looking for, but what Kennedy believes.  Earlier in today’s arguments, Kennedy seemed to put the Constitution’s plain language before the “special circumstances” he considered later:

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution? [emphasis mine] 

Key here is that Kennedy’s demanding that the government show “authorization under the Constitution.” Later, he seemed to be demanding only a good argument for circumventing the Constitution.

If Kennedy believes, as any reasonable person would, that the Constitution prohibits the Federal government from forcing citizens to engage in commerce, then he must vote to strike down the individual mandate. 

But I’m not convinced he will.

Ruth Bader Ginsberg’s Crappy Argument In Support of ObamaCare

I’m often amazed at the weakness of arguments before the Supreme Court. Today, Ruth Bader Ginsberg, attempting to help out the Obama Administration’s fumbling solicitor-general, made the weakest argument I’veRuth Bader Ginsberg ever heard.

First, Ginsberg’s statement:

Mr. Verrilli, I thought that your main point is that, unlike food or any other   market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money.
Read more: http://www.businessinsider.com/ginsburg-and-kennedy-questions-on-obamacare-2012-3#ixzz1qLDgvyX0

Ginsberg accurately described the government’s case. But in so doing, she made the plaintiffs’ case. 

Food is at least as important as medical care.

  • Food is a vital necessity.
  • Food can be provided from a variety of sources.
  • People can honestly intend to provide for their own food and fail.
  • When people are unable to feed themselves—when their crops fail, the goat dies, etc.—other people feel compelled to help them.  (Thank God, literally.)

Ginsberg and Solicitor-General Verilli insult our intelligence in their arguments.  They seem to say that medical care is more necessary to life than food. Yet, without food, we die.

I can fully intend to feed myself. I buy chickens for eggs and meat, goats for milk. I plant a huge, beautiful garden with heirloom seeds. I dig a well. Then someone steals my goats, the chickens die of some communicable chicken disease, and a hail storm destroys my garden.

On the other hand, maybe the Obama Administration and Ginsberg aren’t arguing this case—maybe they’re arguing the next one, when HHS and FDA order us to buy certain foods.

The argument that medical care—or, more accurately, medical insurance—is unique holds no water. If it’s unfair to burden the insured with the medical costs of the uninsured, it’s unfair to burden the well fed with the food costs of the unfed. Fairness is independent of government’s involvement.

But that simple truth—like most truths in life--is too much for totalitarian worldview shared by Ginsberg, Verilli, and Obama.