THE BLOG
04/03/2012 03:56 pm ET Updated Jun 03, 2012

An Ironic Spectacle in the Supreme Court

One can list only a dozen or so pivotal Supreme Court cases that really changed the course of citizens' lives in U.S. history. For example, in recent years, Roe v. Wade in respect to women's right of choice, and Brown v. Board of Education in respect to equality among the races for education.

Perhaps the most important case of all was Marbury v. Madison in 1803. Then-Chief Justice Marshall wrote to the effect that the commerce clause of the Constitution was the mortar that holds together the bulk of our federal system. The basic proposition of that case underpins the notion that virtually anything that constitutes "commerce" among and between the states is subject to the power of the U.S. Congress to be regulated for the benefit of all U.S. citizens in all the states.

Nothing, it seems to me, could still be more basic to the existence and health of our republic. For that reason alone Marshall ranks right after George Washington as one of the greatest founding fathers.

Today's Supreme Court case challenging the constitutionality of Obamacare goes right to the heart of Marshall's opinion. The key issue in that complex case is whether the mandate to require purchase of health insurance falls within the scope of the commerce clause and thus Congress' power. Whether the commerce clause covers health care really is not a legal issue at all. It is fair and square a matter of fact and public policy.

Thus, going into the case, this Court is bringing its political philosophies into play, which is causing an ironic inversion of some of their treasured methodologies for deciding cases.

The Court today appears to have two factions of four justices and one swing justice. The faction of four who, based on past performance, favor the commerce clause covering a health care mandate were all nominated by Democratic presidents. The faction of four who apparently do not favor the commerce clause covering the health care mandate were all nominated by Republican presidents. The one swing justice was appointed by a Republican president, but has shown more flexibility than the others.

The Republican justices have repeatedly argued in opinions, speeches and articles for the need for judicial restraint and the importance of avoiding the Court's substitution of its view of facts and public policy (as distinct from the law) for that of the Congress, whose province it is to express the views of the public at large.

On the other side, the Democrat Justices have long been the target of Republican criticism for having violated those judicial concepts.

Accordingly, everything in this case is noticeably upside down. The Republicans are reaching (perhaps overreaching) to exclude the commerce clause powers from the Congress with respect to health care. And, the Democrats are struggling to hold that single political swing vote from bringing down a carefully built house of cards that took 40 years to bring to and pass Congress.

It's a challenge to figure how the Republican justices have juggled their minds to reach their apparent view. An interesting insight can be gleaned from a story about Milton Friedman, the long famous conservative economist, who, when challenged by fellow economists as to why he took a position in contravention of established economic theory and facts, said, "when all else fails I favor whatever path leads to less government; it's that simple."

It appears now that the Republican Justices are about to seize that amazingly simple minded solution to such an important and fundamental public policy issue.

Hopefully, before it is too late, all the justices may wake up to a very simple and appropriate solution to this case, which is demanding a judicial solution to a public policy question. As we all know, almost too well!, there are elections scheduled for this November in which virtually all of the candidates on both sides of the health care issues are already campaigning for and against legislative repealof Obamacare.

The simplest, smartest move by today's Supreme Court, to avoid the trap that awaits them, would be to let the American people, in effect, make the decision in this year's elections.
By refraining from any decision now the Court would preserve its prestige and power and avoid confusion and anger as well as fundamental and serious damage to the economy and the basic physical health of the country.

Such a decision now would not preclude the Court from taking up the same questions later but the outcome of the elections this year would better inform the Court in such event.

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