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The Supreme Court Is Ruled by Right-Wing Extremists -- Can the Court's Moderate Women Counteract Their Radical Bent?

The healthcare debate showed why the Supreme Court needs more moderate women -- and men -- on the bench.
 
 
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The U.S. Supreme Court’s conservative justices may not like it, but in the week since its hearings on a new national healthcare reform law ended, the country has scrutinized their performance and the court of public opinion is not very impressed. 
 
The troika of Associate Justices Antonin Scalia and Samuel Alito, and Chief Justice John Roberts, showed more sympathy to the insurance industry than to the uninsured, mocked Congress’ lawmaking powers, and seemed to be looking over the Affordable Care Act with an eye of where to insert their judicial dagger. Their colleague, Justice Clarence Thomas, sat silent as always, although everybody knows where his sympathies lie. 
 
In the middle were Justices Anthony Kennedy and Stephen Breyer, asking questions that reflected the seriousness of the issue—the proper governmental role in extending health coverage to 40-plus million uncovered while controlling costs. And then there were the Court’s women, Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, who, compared to the verbose right-wingers received less coverage—even as they exhibited qualities that most Americans expect of their highest judges: restraint, focus, nuance, empathy and a respect for exercising the power of federal government.
 
Is this just more sexism by the press? Are there double-standards when it comes to points made by the women justices, compared to their belligerent male colleagues? The answer, of course, is yes. But let’s look at some of the points that the women made—reinforced, often, by another moderate justice, Stephen Breyer. It reveals Americans would be well served by having more thoughtful, like-minded women—and men—on the Supreme Court.
 
Day 1: Is it or isn’t it ripe for review?
 
The hearings began with whether the Court should even review the reform because its signature provision, the requirement all Americans have a health plan or pay a federal income tax penalty, has not yet taken effect—and won’t until filing their 2014 taxes. Roberts invited a lawyer to start by arguing it would be premature to hear the case, relying on a post-Civil War decision barring suits on taxes until after they’re paid. 
 
Right from the start, Sotomayor, displaying a no-nonsense pragmatism, said there was plenty of precedent to hear a case on pressing national issues. “I count at least four cases in the Court's history where the Court has accepted a waiver by the Solicitor General and reached a tax issue,” she said. “Isn't the fairer statement that Congress has accepted that in the extraordinary case, we will hear the case?” 
 
Ginsburg asked an even more basic question that anticipated much of what followed in the next three days: whether the issues before them were real or fabricated to achieve an ideological goal. “All this talk about tax penalty—it’s all beside the point because this suit is not challenging the penalty,” she said. “This is a suit that is challenging the must-buy provision.”  
 
The women also were the only justices to repeatedly focus on the impact on real people, starting with what might happen to someone who failed to have a health plan, such as a former prisoner now on parole. “Is the only consequence the payment of the penalty,” Sotomayor asked. “If they don’t buy insurance, they would be disobeying the law and could be subject to having their supervised release revoked?”
 
The government’s lead attorney replied that would not happen.
 
The opponents’ lawyer said the 26 red states fighting the law would receive “a classic pocketbook injury” because there would be costs tied to enrolling more people in a state healthcare program. Kagan did not buy it, saying, “That does seem odd to suggest that the State is being injured because people who could show up tomorrow with or without this law will – will show up in greater numbers. I mean, presumably the State wants to cover people whom it has declared eligible for this benefit.”
 
Ginsburg was equally puzzled by the states’ claims they would be injured—since they have been in the business of providing Medicaid for decades. “Why would someone not choose to obtain it?” she said. “It must be just that they haven’t been given sufficient information to understand that this is a benefit for them.”   
 
Day 2: Can Congress order everyone to have a health plan?
 
The second day of hearings was when the political fireworks began. The legal issue was whether there were limits on Congress’s authority under the Constitution’s Commerce Clause, which says Congress can regulate interstate economic activity. The opponents argued that the mandate should be struck down as unconstitutionally excessive, adding the rest of the law should be tossed along with it.    
  
To start, Sotomayor pushed back, asking why it had to be an all-or-nothing equation? She said that many states, such as Massachusetts, which has a mandatory coverage law, have adjusted the fine print of their health reforms as needed. “Why shouldn’t we let Congress do that,” she said, in response to an argument that just striking the mandate would cause private insurance to become more expensive. “What’s wrong with leaving it to – in the hands of the people who should be fixing this, not us?”
 
She continued, asking why should parts of the law that should save people money—state insurance exchanges where individuals could buy into a group plan—should be thrown away with the rest of law. “That has proven to be a cost saver in many of the states that have tried it,” she said. “So why should we be striking down a cost saver when if what your argument is, was, that Congress was concerned about costs rising?”
 
Perhaps her most notable exchange came with Scalia, who said Congress could not be trusted to fix the law, because of “inertia,” his term for gridlock, and then suggested that the Supreme Court assert itself. “Are you suggesting that we should take more power to the Court,” she replied, “because Congress would choose to take one path rather than another? That’s sort of taking onto the Court more power than one I think would want.”
 
Kagan also pushed back at the lawyers opposing the law and right-wing justices that there was no middle ground. “The question is always does Congress want half a loaf? Is half a loaf better than no loaf? And on something like the exchanges it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something.”
 
Ginsburg made that same point, telling the right-wingers that their slash-and-burn inclinations were anything but conservative. “There are so many things in this Act that are unquestionably okay,” she said. “So why should we say it's a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.”
 
This was where both Roberts and Scalia began discussing the messy politics of passing the law in Congress. Kennedy said it might be more intrusive to strike down the coverage mandate, because that was the key to funding the reform, rather than killing the 2,700-page law. The more moderate Justices, Kagan, Sotomayor and Breyer tried to steer the hearing back to legal issues—not legislating from the bench. Sotomayor said, “This is an issue of the Court’s exercise of discretion. Because the last two questions had to do with what’s wise for the Court to do, not whether it has the power to do it or not.”
 
While the conservatives harped on whether they could or should overturn the mandate or the entire law, Ginsburg went back to the impact on people who had to buy insurance if not everybody was paying their fair share. “The price won’t be affordable,” she said, “The insurance companies are going to have to raise the premiums. So it’s nice that Congress made it possible for more people to be covered, but the reality is they won’t because they won’t be able to afford the premium.”
 
Sotomayor also was peeved that opponents were dismissing the healthcare crisis. “You are ignoring the congressional findings and all of the evidence Congress had before it,” she said. “Those are all of the materials that are part of the legislative record.” 
 
But the Court’s conservatives were looking for ways to kill the bill without considering any middle ground. A while later, Scalia said, “My approach would say if you take the heart out of the statute, the statute’s gone.” That prompted Breyer’s most forceful warning, saying, “I would stay out of the politics. That’s for Congress; not us.”       
 
Day 3: Is Congress coercing the states to expand healthcare?
 
The final day began with a discussion of whether the rest of the law can stand if the coverage mandate is removed. Then the Court took up whether Congress could force states to expand Medicaid programs by threatening to withhold federal funds for the entire state-run program. The law’s opponents claimed that was “coercing” because statewide leaders—Republicans—did not want to spend money on any expanded healthcare for low-income people.
 
Kagan noted that the federal government was going to pay the full cost of expanding Medicaid starting in 2014, although that would shrink to 90 percent by the decade’s end. “The federal government here is saying, we are giving you a boatload of money,” she said. “There’s no matching fund requirement. There are no extraneous conditions attached to it. It’s just a boatload of federal money for you to take and spend on poor people’s health. It doesn’t sound coercive to me, I have to tell you.”
 
The opponents said that didn’t matter, because the states were being forced into an all-or-nothing position. Ginsburg did not buy that, saying that nothing was new in the relationship between the federal government and states. “Isn’t that true of every Medicaid increase,” she asked, “that each time – I mean, and this started quite many years ago, and Congress has added more people and given more benefits – and every time, the condition is, if you want the Medicaid program, this is the program, take it or leave it?”
 
The opponents said that didn’t matter, because the political leadership in 26 states did not want to spend any more money on Medicaid. But Ginsburg was having none of that. “We are also told that there are other States that like this expansion, and they are very glad to have it,” she replied. “You are saying that because you represent a sizeable number of States, you can destroy this whole program, even though there may be as many States that want it, that don't feel coerced, that say -- think this is a good thing?”
 
By this point, Scalia was openly mocking the law’s defenders, interjecting, “Is there any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors? Is that possible?” There is “a correlation,” replied the attorney representing the opposing states. 
 
But the Court’s women ignored Scalia’s sarcasm and kept steering the discussion back to the legal issues. Sotomayor said curtailing Congress’ spending authority could create a precedent where the Congress could be prevented from acting in national emergencies. “I guess my greatest fear…with your argument is the following: The bigger the problem, the more resources it needs. We’re going to tie the hands of the federal government in choosing how to structure a cooperative relationship with the states. We’re going to say to the federal government, the bigger the problem, the less your powers are.”
 
A few minutes later, Kagan added that it was incorrect for the opponents to say Medicaid was a program run entirely by the federal government and not by the states. “That is very confusing because the idea behind cooperative federal-state programs was exactly a federalism idea. It was to give the states the ability to administer these programs. It was to give the states a great deal of flexibility in running those programs. And that’s exactly what Medicaid is.”
 
By the time the third day of hearing came to a close, the Court’s moderate justices, led by its women, had shown the issues before the Court were anything but the black-and-white pronouncements made by the law’s opponents, just as they raised very serious issues surrounding the Court’s limiting of Congress’ power to act in a national emergency. 
 
“You are arguing that this whole Medicaid addition, that the whole expansion has to be nullified; and moreover, the entire healthcare act,” said Ginsburg, suggesting the right-wingers had overreached. “Instead of having the easy repair, you say that if we accept your position, everything falls.”
 
The Court is expected to issue its decision in June. Longtime Supreme Court reporters are split with their predictions of what the conservative majority will do. The swing votes are seen in the Chief Justice’s and Kennedy’s hands. During the hearings Roberts warmed to the idea of striking down the Medicaid expansion but leaving the requirement that all Americans have a health plan—an ideological pro-free market, anti-public sector stance. Kennedy was harder to read, saying at one point, “most questions in life are matters of degree,” which suggested that perhaps his female colleagues’ comments resonated. 
 
Regardless of what emerges in June, one conclusion is clear. The Supreme Court’s moderates, led by its practical, solution-oriented, and power-respecting women and men, are essential to counterbalance the ideological right-wingers in the federal judiciary. If President Obama is re-elected, appointing more like-minded moderates to the U.S. Supreme Court could become his most important legacy.
 

Steven Rosenfeld covers democracy issues for AlterNet and is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).