Conservative Justices’ Troubling Understanding of Health Care Market

March 30, 2012

by Jeremy Leaming

Before this week’s marathon oral arguments in the case challenging health care reform, many legal scholars, had strongly argued that the challengers’ arguments did not have a serious chance of surviving Supreme Court scrutiny.

Primarily the reasoning was based on high court precedent in favor of a broad reading of Congress’ power to regulate commerce and to tax and spend for the general welfare.

But those perceptions have been rocked following three lengthy days of oral argument, in which Justices Antonin Scalia and Samuel Alito appeared to have bought the challengers’ arguments against the minimum coverage provision, and, at times, revealed utter callousness toward national lawmakers’ attempt to reform a terribly inefficient and exclusive health care system that has left tens of millions uninsured.

Moreover as The New York Times columnist Paul Krugman noted, several of the justices appeared utterly or willfully ignorant of how “insurance works.” Krugman said Scalia’s comparison of purchasing health care insurance to buying broccoli “horrified health care experts all across America because health insurance is nothing like broccoli.”

“Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick – which what happens in the absence of a mandate – the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those  who remain. As a result, unregulated health insurance basically doesn’t work, and never has,” Krugman wrote.

Walter Dellinger, former Solicitor General, at an ACS briefing on the oral arguments in HHS v. Florida, said it appeared, based mostly on their questions that three justices look ready to strike the minimum coverage provisions. Justice Samuel Alito’s questions were almost as hostile as Scalia’s and most, including Dellinger, believe Justice Clarence Thomas will vote to invalidate the law’s integral provision.

But Dellinger (pictured) is still holding out hope that two more justices will not join those three in killing health care reform.

“If there were five,” he said, “I would be shocked, because I think it would take us back to the jurisprudence of the 1920s. I think it would be the most stunning and indefensible judicial decision in half a century. It would be paired with Bush v. Gore in the law books forever.”

Dellinger said that the judiciary should stay out of second-guessing Congress’ ability to regulate complex economic, budgetary questions, which are “way beyond the capacity of those nine people sitting on the bench, with none of the resources to study and analyze these problems.”

In a piece for TPM, Brian Beutler also notes that the “conservative-leaning justices revealed a persistent lack of knowledge about the health care and health insurance markets, the structure of the law and its myriad provisions that have nothing to do with the mandate.”

Maya Wiley, founder and president of the Center for Social Inclusion, noted that beyond revealing a disconcerting ignorance of the health care market, the right-wing justices also, at times, revealed callousness.

What the case is really about, Wiley said, is the long overdue need to ensure that all people can see a physician when they are sick. The health care market has indeed been functioning in a way to keep tens of millions of Americans from being able to get the care they need. And, of course, being saddled with illness makes it incredibly difficult, if not impossible, to pursue happiness and experience liberty. See the entire conversation below, and for more analysis of this week’s oral arguments, see the ACS symposium.