Tuesday's arguments regarding the health care reform act dealt with the key question of the mandate for coverage--whether Congress exceeded its constitutional authority to regulate commerce by enacting the insurance mandate. Download Heath Care Act. SCt transcript032712.
The arguments suggest that the Roberts Court may continue down its path mimicking the Supreme Court of one hundred years ago--sticking to an outdated and distorted view of the Constitution framed by a radical right majority on the Court (comprised of Roberts, Alito, Thomas, Scalia and often Kennedy) and unsuited to the real challenges that our society faces today. As the New York Times noted, the administration lawyer arguing in support of the mandate "faced a barrage of skeptical questions on Tuesday from four of the Supreme Court's more conservative justices, suggesting that a 5 to 4 decision to strike down the law was a live possibility." Adam Liptak, Justices Split in Questions on Insurance Requirement , New York Times (Mar. 27, 2012).
Like the Court that FDR threatened to pack, this Court's majority is an activist Court with a right-wing ideology, with many of its cases strenthening the corporatist agenda and others leaning towards the radical right in other matters.
The Times reporter read Scalia and Alito as "consistently hostile" to the law, Roberts as "a little less so" and Kenney as asking hard, skeptical questions. Id. Thomas of course hardly ever asks a question from the bench but hardly ever deviates from a rigidly right-wing position on cases, and doesn't show much regard for the Court's precedent.
A key statement by the government lawyer demonstrating that the Commerce Clause power should extend to the mandate provision is the following:
[T]he health care market is characterized by the fact that (aside from the few groups that Congress chose to exempt from the minimum coverage requirement--those who for religious reasons don't participate, those who are incarcerated, Indian tribes--) virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot--people cannot generally control when they enter that market or what they need when they enter that market.
He should have added that being able to participate in that market when you need to is a matter of life and death.
The justices asked a lot of questions that essentially treated health care as just another commodity that one could buy so they had trouble seeing what limitations on the Commerce Power existed if the mandate is legal. (Roberts made a poor analogy to cellphones, asking whether the government could force a citizen to purchase a cellphone since it would be handy for emergencies.)
Of course their precedent makes it clear that matters that of high urgency to the wellbeing of the nation are of a different status in this regard than ordinary commodities (the Fillburn case of the wheat farmer being restricted in what he was allowed to grow on his own farm for his own use). But the issue here is even more important--the point is that the Commerce Power surely allows the Congress to regulate a market to protect the public's human right to decent health care, when the following is true:
1) you don't "choose" when, how, or whether to participate in the health care market--you are forced to by your own particular body's timing and fortuitous encounter with deadly or near-deadly substances and other matters beyond your control
2) it is a matter of life and death that you be treated, or for nondeadly diseases/injuries, a matter of quality of life
3) Everyone will need medical treatment at various points in their lives and in particular near end of life.
4) Our society and moral values demand that people who haven't wisely insured themselves nonetheless be entitled to life-saving treatment when necessary, at other people's cost.