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On health care and democracy (access required)

The country is buzzing over the Supreme Court’s ruling on the constitutionality of the Patient Protection and Affordable Care Act, or PPACA. (Obamacare actually sounds better). Proponents celebrated the decision as a watershed event for our nation and the 30 million Americans who will now have health insurance under the law. The legislation’s detractors jeered the ruling and vowed to redouble efforts to get rid of the law. Political pundits continue to debate vigorously the political consequences of the high court’s ruling for Barack Obama and Mitt Romney come November. The politics of universal health care notwithstanding, Thursday's decision has great significance for American democracy. Consider the ironies. The Roberts Court has been characterized as the most partisan in modern history. Over the last several years on some of the more politically divisive issues in the nation, the Supreme Court, through its 5-4 conservative majority, has scaled back or rejected outright many of the progressive policies so reminiscent of the health care law it just upheld. Many suspected the Supreme Court’s decision on the health care reform law to come down the same way. It didn’t because in deciding this case, Chief Justice John Roberts, who then-Sen. Barack Obama voted not to confirm, took seriously his role to preserve and protect the court and the Constitution.


  1. Mr. Brown claims that a politically divisive result was avoided because Chief Justice Roberts “took seriously his role to preserve and protect the court and the Constitution.” Does that imply he doesn’t in other cases? Some conservatives might argue that the Chief Justice put concerns for personal and institutional reputation ahead of his duty to protect the Constitution here, choosing instead to hang his hat on an issue that was lightly briefed and argued and soundly rejected by lower courts. (There is some evidence for this:;contentBody) Some liberals might argue the same, considering that the Chief Justice adopted the Commerce Clause and Necessary & Proper Clause reasoning put forth by the dissenting conservatives that was widely dismissed by liberal scholars.

    That’s the tricky part about viewing the Supreme Court through a predominantly partisan lens. It reduces the outcome of important cases to a narrative that says “those who supported my preferred outcome were doing justice while those who disagreed were doing partisan politics.” It is a caricature.

    Lawyers should be reluctant to promote that kind of narrative. It is exceptionally difficult to weigh the competing arguments in cases like these. That’s how these cases get to the Supreme Court in the first place. Reducing the vitally important work that our highest court does to mere political theater cheapens the institution far more than a controversial 5-4 decision does. Self-serving politicians may benefit from that kind of narrative but lawyers do not. More important, this kind of narrative promotes to the general public an overly simplistic and inaccurate view of how the Supreme Court works.

    Lawyers should help the public understand the legal issues, not promote theories of palace intrigue.

  2. Jamar R. Brown

    The position that the Supreme Court’s ruling on the Affordable Care Act can, or even should, be understood in isolation from the country’s political milieu reflects a nearsighted perspective of the Supreme Court and its role in our society that I reject.

    The observation (which is not a foreign one) that Chief Justice Robert’s sided with the liberal wing of the Court to uphold the health care law, in an attempt to avoid having the politically charged decision come down on strictly party lines is not, by its nature a partisan viewpoint. The purpose of the observation was to highlight judicial restraint in action: On highly political charged questions, the Court will say, “Let the people, and those they elect to represent them, work it out.”

    While my commentary was not meant to assign political winners and losers, I choose not to ignore the fact that presidents appoint justices to the Supreme Court to move the institution to the right or the left. I also choose not to ignore the fact that some important decisions (not all) come down along the basis of political ideology. These realities of how the Supreme Court works are crucial to understanding how the court reaches many of its decisions. Are the justices, conservatives and liberals, as equally guided and bound by the law? Yes. But can reasonable minds disagree about interpretations of the law? Yes, and they often do. Political ideology and philosophy, background and experience, and values can account for the differences. And the justices are permitted, even expected, to bring all of these factors to bear in deciding the very complicated questions before them.

    Like jurists, lawyers do not check political ideology at the door.