On Tuesday and Wednesday of this last week, the Supreme
Court heard oral arguments on the Constitutionality of Obamacare. Tuesday the argument was on the individual
mandate (the command that everyone in the country purchase insurance. Wednesday the argument was over whether the
rest of the thousand-plus-page law can stand if the mandate falls. (Monday there were arguments on a technical
point of jurisdiction; the Court seems clearly to think it has jurisdiction.)
My not-so-expert prediction is that Obamacare will be struck
down by the Supreme Court. Alito,
Scalia, and Thomas are all considered dead set against it; the liberals are all
for it. Kennedy and Roberts, then, are
the key votes. Most believe Chief Roberts
will follow Kennedy, if only to get in on writing this very significant
decision. It all rests, then, on Anthony
Kennedy.
I did a little study of Kennedy’s past rulings. I’ll spare you the details, but I’d say his
jurisprudence is based on liberty.
Thomas is a radically strict constructionist: what the Constitution
says, goes. Scalia, Alito, and Roberts
(probably in that order) are less strict constructionists: because they believe
in the rule of law, they prefer to do what the Constitution says, but they also
realize that precedent is the rule of law.
If interstate commerce, or due process, has been read in a bizarrely
broad way in the past, they argue, then that reading is part of the rule of
law; it will not do for the Supreme Court to make words mean something vastly
different from what they’ve been understood to mean. So they try gradually to roll things back
towards a strict reading of the Constitution, but realize that this is a
gradual process.
Meanwhile, the justices of the Left, Ginsberg, Breyer,
Kagan, Sotomayor, are all more or less utopianists. Their jurisprudence is based not on the text
of the Constitution, but on what it ought to be – a jurisprudence, one could
say, of justice. If they think Obamacare
is just, the text of the Constitution is irrelevant. This, I should add, is not an unreasonable
jurisprudence. I am on the side of the
text of the Constitution, because I think it is key to the rule of law that we
follow written texts, and I think the rule of law is key. But it is reasonable for the liberal justices to
say that the Constitution is a terribly antiquated text – in many ways it is –
and that, anyway, for eighty years now, years of massive societal change, we’ve
been ignoring it, so why go back now?
There are good Catholic political philosophers, people who
focus on “natural law” such as Hadley Arkes and J. Budziszewski, who agree with
the liberals on this, and who strenuously reject the thinking of the Court’s
conservatives. They think the Court
should rule for what is right, not what is written down. As a student of Thomas Aquinas, I think this
focus on natural law is a little naive, and I think it’s a matter of natural
law, and rightness, to follow the written text (and thus the rule of law)
anyway. But it’s worth noting that the
liberal perspective is not so crazy.
Nor is Justice Kennedy’s.
He has a simplified version of what’s right or good: a balance of
individual liberties. This is actually a
pretty respectable view. Instead of the
utopianism of Ginsberg etc., which obviously falls into all sorts of
subjectivism, he says, look, the basic principle of America, and of good
government, is that the government won’t intervene unless you’re trampling on
other people. Reduced to a clear
jurisprudential rule, the test is liberty.
You lose liberties only to the extent that you’re taking away other
people’s liberties.
On this test, I think the Obamacare individual mandate falls
because, by making people buy a product they don’t want, it unnecessarily
intrudes on individual liberty.
An interesting part of the decision will be how it’s
written. To varying degrees, Thomas,
Scalia, Alito, and Roberts (in that order) will argue that the mandate is
invalid because it does not match the enumerated powers in Article One, section
eight, of the Constitution: specifically, a health-insurance mandate does not
fall within Congress’s power to “regulate interstate commerce.” But Kennedy, the key vote, will argue that it’s
invalid for a totally different reason.
Expect him to write the decision, with significant concurring arguments
from the others; maybe even a big one signed by all four.
Some further details tomorrow.
