How Activist is the Roberts Court?

by Jeremy Leaming

A Supreme Court opinion striking health care reform would be indefensible and widely perceived as political said former Solicitor General Walter Dellinger at a recent ACS briefing on last week’s oral arguments in HHS v. Florida.

Dellinger’s sentiment is echoed in an editorial from The New York Times, which said the oral arguments in the health care reform case should put to rest the widely held belief that “legal conservatives are dedicated to judicial restraint ….” For the Roberts Court, The Times continued, has proven to be a judicial entity ready to “replace law made by Congress with law made by justices.”

The Times’ editorial continued, “Established precedents support broad authority for Congress to regulate national commerce, and the health care market is unquestionably national in scope. Yet to Justice Kennedy the mandate requiring most Americans to obtain health insurance represents ‘a step beyond what our cases have allowed, the affirmative duty to act, to go into commerce.’ To Justice Breyer, it’s clear that ‘if there are substantial effects on interstate commerce, Congress can act.’”

President Obama fielding questions from reporters following a news conference with Canadian Prime Minister Stephen Harper and Mexican President Felipe Calderon, issued concern about a high court opinion invalidating the Affordable Care Act, Politico reported.

“I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint,” Obama said. “That a group of people would somehow overturn a duly constituted and passed law. Well, this a good example. And I’m pretty confident that this court will recognize that and not take that step.”

The president said his confidence was based on “precedent out there. That’s not just my opinion, by the way. That’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices who said this wasn’t even a close call.”

One of those judges is Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit. Silberman, in Seven-Sky v. Holder, upheld the minimum coverage provision, which requires many Americans to carry a minimum amount of health care insurance starting in 2014, against a challenge that it was a wild overreach by the federal government.

“Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services – as rather useless as that would be – is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce,” Silberman wrote in the case.

During the ACS briefing on the oral arguments, former Solicitor General Walter Dellinger cited Silberman’s decision in saying that he was holding out hope that a majority of the justices would not kill the health care reform law.

Dellinger noted that Silberman had found that the health care insurance requirement is within the scope of regulating commerce among the states.

But several of the Supreme Court justices pressed the federal government during oral argument for a limiting principle. Several of the justices, notably Antonin Scalia, claimed that if the mandate were upheld that Congress could require us to buy all kinds of products, such as broccoli.

Dellinger said the limiting principle is not hard to define here. “The power to regulate commerce among the states,” he said, “extends to goods and services that will be provided to the individual even if they have no arrangements to pay for them, where the costs will be shifted to others, in a way that undermines an undoubtedly regulatory constitutional scheme.”

That principle Dellinger added does not cover the hypotheticals bandied about right-wing activists and several of the conservative Supreme Court justices.

As noted here last week the high court’s conservative justices, at times revealed a disconcerting understanding of how the health care insurance market works. Dellinger also said those same justices, at times, revealed callousness in their questioning.

“I was struck by how callous some of the questioning was,” Dellinger said. “It is really quite striking when the Solicitor General [Donald B. Verrilli, Jr.] notes that a critical part of the background of which Congress regulated is the obligation we have to provide treatment to people who are sick or injured.

“The snappy reply from Justice Scalia was, ‘well don’t obligate yourself.’”  

Scalia, Dellinger said was suggesting that the federal government has created this problem. “That it’s a problem that we don’t let people suffer and die on the steps of the hospital,” he said. “The notion that is a problem of the government’s creation is fundamentally callous.”

Indeed Dellinger noted that many states, including the ones challenging the health care reform law have similarly explicit laws.