At precisely 10:00 a.m. March 26, in a marble palace atop a hill in Washington, D.C., nine Supreme Court justices will emerge from behind red velvet curtains to begin an unprecedented six hours of oral argument over three days. In the case known as Florida vs. Department of Health and Human Services, the court will decide the constitutionality of the Patient Protection and Affordable Care Act, aka Obamacare.
At the heart of the case is the law's individual mandate, which requires most Americans to purchase private health insurance. Opponents warn that the mandate tramples individual freedom and even threatens IHOP, White Castle and chicken nuggets. Obamacare is government run amok, so their argument goes, because there will be no limit on governmental intrusion into our lives.
Not so, say Obamacare supporters, who explain that the individual mandate is necessary to fix our broken health-care system because it helps solve the problem created by the 49 million uninsured whose uncompensated care costs the rest of society more than $50 billion a year. As Republican presidential candidate Mitt Romney has said, a mandate requires "free-riders" to take personal responsibility for their medical care rather than depending on the government.
The Obamacare decision, expected in late June, may be a game-changer for those struggling to afford crippling health-care and health insurance premium costs. Thirty-two million Americans are expected to gain coverage under Obamacare, including legions of middle-class families. The law's ban on insurance exclusions for pre-existing conditions will be welcome relief for 57.2 million non-elderly Americans with medical conditions.
The decision's long-term effect upon our individual freedom and the health of millions of ordinary Americans will pale, at least temporarily, in comparison to the fireball that will roil presidential election politics.
Yet, despite the magnitude of this landmark controversy, only a scant 50 or so citizens willing to spend one or more nights sleeping on the court's marble steps will witness the arguments each day with their own eyes, because the court does not allow cameras into its chamber.
Led by C-Span CEO Brian Lamb, mainstream media have raised a cry for live television coverage of this singularly important case. The court has not responded.
By thrusting itself squarely into presidential election politics, the court has once again opened itself to attacks on its legitimacy as impartial arbiter of the rule of law. We all remember Bush vs. Gore, where five justices put an end to the Florida vote count, handing the presidency to George W. Bush. And we are now witnessing the effect of the court's 2010 decision in Citizens United vs. Federal Election Commission, which opened the floodgates for campaign contributions from corporations and unions to Super PACs that thus far have poured more than $98 million into the presidential campaign. These controversial decisions, among others, have led court observer Jeffrey Toobin to describe the court as a "partisan battlefield."
According to Drexel University legal scholar Lisa T. McElroy, the American public has a presumed right to see its government at work. Television coverage of Supreme Court proceedings would give the American people the opportunity to form their own educated opinions about the legitimacy of the court as an institution. At risk is nothing less than the public's confidence, which according to former Justice John Paul Stevens, is the "true backbone of the rule of law."
With or without television coverage, the American people will decide for themselves whether the court's Obamacare decision is based on the rule of law or partisan political beliefs. Allowing cameras, even if only for this case, is the court's best chance for protecting and preserving its honor and integrity, but time is running out.
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