By Erin Louise Palmer, Professorial Lecturer, American University Washington College of Law
In a 1995 book review, Supreme Court nominee Elena Kagan stated that confirmation hearings are a "vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis." She urged senators to engage in a substantive discussion with Supreme Court nominees. Even though Kagan has retreated from this view, commentators continue to urge senators to "let it be known that they will no longer confirm any Supreme Court nominee who refuses to give substantive answers to relevant questions."
Senators will have the opportunity to engage in substantive discussion with Kagan during her nominations hearings, which are scheduled to begin on June 28, and Republicans have vowed that the constitutionality of health care reform will be a central issue at those hearings. Senators will have the opportunity to frame the debate over the constitutionality of health care reform broadly. As Republican Senator John Barrasso stated on Fox News, "[W]here do states' rights come in, where is the role of the federal government, what can they mandate to the American people, and I'm going to want to hear answers on that." Kagan's answers to these questions will shed light on how she would eventually rule on a case involving the constitutionality of health care reform, as well as the larger issues of states' rights and the role of the federal government.
Commentators generally believe that Kagan would strike down an attack on the constitutionality of health care reform. For example, one commentator analyzed the views of legal scholars across the political spectrum and concluded that Kagan is unlikely to alter the current composition of the Court. As noted by Randy Barnett, a constitutional law professor at Georgetown Law Center who believes there is a valid constitutional challenge to health care reform under the Constitution's commerce clause, "She's as likely to vote to uphold the law as Stevens would have been."
The conclusion that Kagan would vote to strike down an attack on the constitutionality of health care reform makes sense because there is not much strength to the arguments cited by critics of health care reform. The much publicized complaint filed by 20 states against the Department of Health and Human Services, the Department of the Treasury, and the Department of Labor relies primarily on the argument that the failure to purchase health insurance is "inactivity [that] by its nature cannot be deemed to be in commerce or to have such an effect on commerce, whether interstate or otherwise, as to be subject to Congress's powers under the Commerce Clause." As noted by one commentator in an ACS Issue Brief, however, "[t]his ‘inactivity' claim is empty verbal gimmickry" because individuals who choose to forego health insurance are relying on emergency room care and other means that will be available if and when they face serious illness or accidents. Erwin Chemerinsky, founding dean of the University of California Irvine School of Law, has noted, "The reality is everyone at some point is going to need health care, whether if it's for an auto accident or a communicable disease, and Congress can make sure everyone pays for the system they're likely to benefit from."
In addition, the Court's prior opinions do not support efforts to strike down health care reform as unconstitutional, particularly those of Justice Kennedy, who would likely author an opinion on the issue. In his concurring opinion in United States v. Lopez, a case in which the Court struck down the Gun Free School Zones Act of 1990 because the Act was not sufficiently tied to interstate commerce, Justice Kennedy joined the Court's opinion with the observation that "[t]he history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power." And in Gonzales v. Raich, an opinion joined by Justice Kennedy, the Court upheld prosecutions of individuals growing marijuana for home medicinal use under the Controlled Substances Act.
In light of Kagan's nonexistent judicial record, it is important for senators to press Kagan for substantive answers regarding the constitutionality of health care reform and other issues. Although it is unlikely that Kagan's presence on the Court would shift the tides on the issue of health care reform, only probing questions will provide a glimpse of Kagan's views on states' rights and federalism, issues important to Kagan's broader judicial decision-making philosophy.