Jeffrey Toobin’s lead article in the April 9 New Yorker is a clear and convincing argument for the liberal viewpoint on the Supreme Court’s role in evaluating Romneycare – whoops, I mean Obamacare. As befits a graduate of THE Law School, Toobin applies the power of court precedent to the debate, finds that the law should be sustained, and excoriates Court conservatives for replacing judicial process with personal bias and a lack or respect for the elected representatives of the people.
We should pause to note that Toobin, for about twenty years the legal guru at New Yorker and more recently at CNN, writes with convincing clarity and hits from the left side of the plate. Neither of these facts make him wrong — but neither guarantees that he is correct, either.
Toobin notes extrinsic pressures on the Court deliberations: politics. It is hard to know the degree to which the Justices will internalize political realities in their judgments. His analogy to the Roosevelt Supreme Court reversing in 1937 its conservative bias (most importantly expressed by the Court striking down the NRA in the 1935 “sick chicken case”), thereby reflecting an appropriate appreciation for the presumed validity of Congressional Acts passed by elected officials, seems misguided; likely, fear of Roosevelt packing the Court was a greater driver of the Supreme Court changing direction.
What is not discussed by Toobin is the role of social values underlying the debate. The article’s suggestion that the conservatives on the Court are applying not only unprecedented standards but also their own sense of our Social Compact to the detriment of “THE LAW,” is implicit and not stated but, I suspect, can be found one layer deeper in the Toobin onion.
For example, his moral outrage over this same Court declaring corporations to be people in Citizens United is echoed in Toobin’s clear moral contempt for questions directed from conservative Justices to the Solicitor General that suggest sympathy for the insurance companies which are subject to Romney/Obamacare.
Every branch of our government reflects the sense of the electorate (that part which votes) as to the current nature of our Social Compact. We, or some of us, elect two branches and one branch names the third; to say that Justices are not elected is true only in the technical sense. And to suggest as does Toobin that conservative social thinking is polluting the judgment of conservative Justices is just another way of saying that people are messing with the liberal social thinking that for several decades of the 20th Century in fact dominated the content of our legal precedent. It is not that improper social thoughts are taking over our Courts; rather, it is that social thoughts that liberals do not share are taking over our Courts.
Enter another way to think about the debate; it is a way that is not Constitutionally premised, but rather is reflective of what underlies our governance and what is (imperfectly) reflected in our voting. What would Jeremy Bentham and John Stewart Mill, the utilitarian philosophers, do if they were on the Court?
Likely they would be blind to the Constitutional arguments although that would be a shame; the primacy of the rule of precedential law is pretty important and not often shared outside the legal profession. I am sure they would ignore the pressure of the election. But they would, as all people must, bring their understanding of our society’s “Deal” with itself to the deliberations. And their understanding is neither conservative nor liberal, it is utilitarian.
Now there are various schools of utilitarianism and I am going to do disservice to all of them (and reveal no doubt a lack of deep knowledge) by reducing the whole lot to a simple proposition: best governmental decisions provide the greatest good and happiness to the greatest number. Put another way – my way — we should look to weight benefit and burden. That mathematics multiples the number of benefited by the amount of benefit, and balances it against the number of burdened multiplied by the amount of burden. The best answer is told by the way in which the balance tips.
So who is benefited by Romney/Obamacare? Arguably most people. Those without current coverage? Yes. Those with existing coverage? Likely so; I know that when I pay my horrendous premiums I am already paying for many who are not covered; it is implicit in the costs of the care I receive that I am covering the uninsured who by and large are being treated anyway at hospitals and by doctors that I, and others like me, do already pay for. The insurance companies? As regulated entities, which particularly under Romney/Obamacare cannot be allowed to fail, they will get funded by premiums and governments.
Who is burdened? Everyone who pays taxes certainly. But query if they are paying in the long run more than they are paying now by reason of presently paying for their own care and (in an inefficient way) the care of the “uninsured.” Individuals whose freedom is infringed by being forced to buy a product they do not want? I find that a facially logical proposition that plays to our legitimate sense of freedom but is unconvincing. We already are forced to “buy” an infinity of things that we may not want. How about certain military adventures? Farm subsidies? Pork barrel? Pick your pet peeve that your tax dollars go to. Would Bentham much care about the argument that the government could fund universal health care by tax but cannot do so by Romney/Obamacare, when the functional result and economic costs seem roughly the same?
Our “freedoms” are impinged mightily every single day by government, and that is a wholly separate and legitimate discussion, but is not significantly addressed by saying that Romney/Obamacare should be stricken because government is forcing us to buy a commercial product.
None of the above of course reflects an independent moral judgment, which is the degree to which our society should afford medical care to people not receiving it. There are two flavors of what is now happening in medical care: many receive it free and we are paying for it anyway and inefficiently to boot; or, some do not receive it at all, which ought to present a moral conundrum to many. (Indeed, some people from whom I hear the argument against the law apply the moral standard privately in their charity but do not see the government as the mechanism to bring moral judgment to medical care, although our government does and must bring moral judgment to almost anything it does do, and by definition).
We will have our answers by the end of June when the Court concludes its current session and must report out its decisions on all cases it has heard. The Court spent three days hearing arguments that I submit will not drive the decision. The decision will be decided by preconceived notions of the Social Compact on the part of eight Justices, and some unknowable tortured process undertaken by Justice Kennedy, who so often is the “swingman” between the entrenched personal philosophies of the others.
We as observers are so politicized in the way we see things that we may miss the real battle here, but that battle also may not be express in what is expected to be multiple written decisions of the Court, as it is not express in Toobin’s New Yorker article.
And the Justices will decide, based on whatever has happened to each of them beforehand, and which brought them to the legal, intellectual and emotional place which each now occupies. Perhaps, as in Bob Dylan’s words, “A man hears what he wants to hear and disregards the rest.”
Jeffrey Toobin’s lead article in the April 9 New Yorker is a clear and convincing argument for the liberal viewpoint on the Supreme Court’s role in evaluating Romneycare – whoops, I mean Obamacare. As befits a graduate of THE Law School, Toobin applies the power of court precedent to the debate, finds that the law should be sustained, and excoriates Court conservatives for replacing judicial process with personal bias and a lack or respect for the elected representatives of the people.
We should pause to note that Toobin, for about twenty years the legal guru at New Yorker and more recently at CNN, writes with convincing clarity and hits from the left side of the plate. Neither of these facts make him wrong — but neither guarantees that he is correct, either.
Toobin notes extrinsic pressures on the Court deliberations: politics. It is hard to know the degree to which the Justices will internalize political realities in their judgments. His analogy to the Roosevelt Supreme Court reversing in 1937 its conservative bias (most importantly expressed by the Court striking down the NRA in the 1935 “sick chicken case”), thereby reflecting an appropriate appreciation for the presumed validity of Congressional Acts passed by elected officials, seems misguided; likely, fear of Roosevelt packing the Court was a greater driver of the Supreme Court changing direction.
What is not discussed by Toobin is the role of social values underlying the debate. The article’s suggestion that the conservatives on the Court are applying not only unprecedented standards but also their own sense of our Social Compact to the detriment of “THE LAW,” is implicit and not stated but, I suspect, can be found one layer deeper in the Toobin onion.
For example, his moral outrage over this same Court declaring corporations to be people in Citizens United is echoed in Toobin’s clear moral contempt for questions directed from conservative Justices to the Solicitor General that suggest sympathy for the insurance companies which are subject to Romney/Obamacare.
Every branch of our government reflects the sense of the electorate (that part which votes) as to the current nature of our Social Compact. We, or some of us, elect two branches and one branch names the third; to say that Justices are not elected is true only in the technical sense. And to suggest as does Toobin that conservative social thinking is polluting the judgment of conservative Justices is just another way of saying that people are messing with the liberal social thinking that for several decades of the 20th Century in fact dominated the content of our legal precedent. It is not that improper social thoughts are taking over our Courts; rather, it is that social thoughts that liberals do not share are taking over our Courts.
Enter another way to think about the debate; it is a way that is not Constitutionally premised, but rather is reflective of what underlies our governance and what is (imperfectly) reflected in our voting. What would Jeremy Bentham and John Stewart Mill, the utilitarian philosophers, do if they were on the Court?
Likely they would be blind to the Constitutional arguments although that would be a shame; the primacy of the rule of precedential law is pretty important and not often shared outside the legal profession. I am sure they would ignore the pressure of the election. But they would, as all people must, bring their understanding of our society’s “Deal” with itself to the deliberations. And their understanding is neither conservative nor liberal, it is utilitarian.
Now there are various schools of utilitarianism and I am going to do disservice to all of them (and reveal no doubt a lack of deep knowledge) by reducing the whole lot to a simple proposition: best governmental decisions provide the greatest good and happiness to the greatest number. Put another way – my way — we should look to weight benefit and burden. That mathematics multiples the number of benefited by the amount of benefit, and balances it against the number of burdened multiplied by the amount of burden. The best answer is told by the way in which the balance tips.
So who is benefited by Romney/Obamacare? Arguably most people. Those without current coverage? Yes. Those with existing coverage? Likely so; I know that when I pay my horrendous premiums I am already paying for many who are not covered; it is implicit in the costs of the care I receive that I am covering the uninsured who by and large are being treated anyway at hospitals and by doctors that I, and others like me, do already pay for. The insurance companies? As regulated entities, which particularly under Romney/Obamacare cannot be allowed to fail, they will get funded by premiums and governments.
Who is burdened? Everyone who pays taxes certainly. But query if they are paying in the long run more than they are paying now by reason of presently paying for their own care and (in an inefficient way) the care of the “uninsured.” Individuals whose freedom is infringed by being forced to buy a product they do not want? I find that a facially logical proposition that plays to our legitimate sense of freedom but is unconvincing. We already are forced to “buy” an infinity of things that we may not want. How about certain military adventures? Farm subsidies? Pork barrel? Pick your pet peeve that your tax dollars go to. Would Bentham much care about the argument that the government could fund universal health care by tax but cannot do so by Romney/Obamacare, when the functional result and economic costs seem roughly the same?
Our “freedoms” are impinged mightily every single day by government, and that is a wholly separate and legitimate discussion, but is not significantly addressed by saying that Romney/Obamacare should be stricken because government is forcing us to buy a commercial product.
None of the above of course reflects an independent moral judgment, which is the degree to which our society should afford medical care to people not receiving it. There are two flavors of what is now happening in medical care: many receive it free and we are paying for it anyway and inefficiently to boot; or, some do not receive it at all, which ought to present a moral conundrum to many. (Indeed, some people from whom I hear the argument against the law apply the moral standard privately in their charity but do not see the government as the mechanism to bring moral judgment to medical care, although our government does and must bring moral judgment to almost anything it does do, and by definition).
We will have our answers by the end of June when the Court concludes its current session and must report out its decisions on all cases it has heard. The Court spent three days hearing arguments that I submit will not drive the decision. The decision will be decided by preconceived notions of the Social Compact on the part of eight Justices, and some unknowable tortured process undertaken by Justice Kennedy, who so often is the “swingman” between the entrenched personal philosophies of the others.
We as observers are so politicized in the way we see things that we may miss the real battle here, but that battle also may not be express in what is expected to be multiple written decisions of the Court, as it is not express in Toobin’s New Yorker article.
And the Justices will decide, based on whatever has happened to each of them beforehand, and which brought them to the legal, intellectual and emotional place which each now occupies. Perhaps, as in Bob Dylan’s words, “A man hears what he wants to hear and disregards the rest.”