The Mills of the Court Grind Slowly, But…

A little more than a year ago President Obama used the venue of his State of the Union address to publicly criticize the recent Supreme Court decision in the Citizens United case, regarding the restriction of political expenditures by corporations and unions. As his supporters rose in standing ovation all around the stoic Justices, Obama’s public criticism became public humiliation. The Justices, bound by a decorum the President chose to ignore, remained generally unresponsive during the spectacle; though Justice Alito did mouth the words “Not true”, a charge the NY Times determined to indeed be accurate. The President may have been wise to have considered the oft repeated Marine Corps quote: “Is this the hill you want to die on?”

Many days have passed since that moment; another, less eventful, State of the Union Address; and the Supreme Court is again in session. This week the Justices heard oral arguments regarding the President’s primary political accomplishment, “The Affordable Care Act”, more popularly known as “Obamacare”. Consensus is that the government’s lawyers did a poor job in defending the constitutionality of the law, and the odds of the law being upheld have shifted; it appears it could be overturned. The President’s silver tongue may have been better employed in influencing the Court’s future decision than criticizing one of the past.

If the law is overturned it will likely be by the same five judges from the majority in the Citizens United case. The four Justices from the more liberal wing of the Court are popularly expected to be in the bag for the law, though it would not surprise me to see one of them desert. The four more conservative Justices are thought to likely vote to overturn the law, though their general disposition might be to lean against judicial activism. The swing vote, as is often the case, would be left up to the moderate Justice Kennedy. Ironically, the majority opinion for the Citizens United decision (the subject of the President’s public pillorying of the Court) was written by Justice Kennedy.

Justice Kennedy’s line of questioning during the arguments concerning the mandate seemed to indicate that he was having difficulty supporting its constitutionality. His interrogation was far from conclusive in determining his mindset, but it did show a crystallizing of the issue at hand. Kennedy iterated that the mandate would “change the relationship of the Federal government to the individual in a very fundamental way”. There is room for the Court to decide this case either way on the basis of the merits of the law itself, precedents and the Commerce Clause, and questions of liberty versus public benefit; but ultimately Justice Kennedy’s observation of the relationship of the Federal government to the individual may well be the constitutional heart of the matter.

The Court will consider that this law will indeed cause a C-change in the way the government and the individual interact. Historically, individual liberty has been held to be one of the highest values protected by the Constitution. Freedom was to be guarded, even the freedom to be wrong or stupid. Of course that freedom is not without limits, and society has at times needed to be protected from individuals’ “freedom”. This “balancing act” is represented at its endpoints by the pure libertarians versus the progressive utopians. Libertarians would argue that liberty is such a precious commodity that the government should only infringe upon it in the most extreme necessity. Utopians believe society functions best when planned and supervised by the best and the brightest, allowing personal liberty when it does not interfere with “the plan”. Historically, the U.S. has leaned more libertarian, and Europe has leaned more utopian or progressive. There is no question that the U.S. has through the years generally crept toward the more controlled and regulated society, and that is indeed the natural progression of Governmental structures. The line we have not yet crossed is that while we have generally permitted the government to tell us what we are not to do, or even how we do the things we choose to do; we have not had a government that tells us what we must do.

The example of whether under the logic of the health insurance mandate, we could rightly conclude that the government might as easily mandate the eating of broccoli seems absurd, but the underlying principle is sound. Once you establish that the Federal government can mandate the individual to participate in commerce with the only limitations being that you are human and breathing, the constitutional door has been opened to whatever laws the government can enact. Broccoli seems a stretch; but mandatory diets, required educational programs, and periodic psychiatric evaluations would seem logical extensions. The question the Court needs to decide is whether this is just a milestone in the natural progression of our society toward a more efficient operation, or a foot in the door for the ultimate tyranny that the Constitution was designed to protect us from. Is this the place where the Court affirms and paves the way for the administration’s vision to “fundamentally change America”, or is this the place where the Court draws a line against the beast of governmental incursion, commanding “YOU SHALL NOT PASS!”? It will be couched in facts and legal terms but ultimately the decision will be based on what the Justices deem to be the ideas of the Constitution, and the nature of the government envisioned by the framers, and/or that which is best for the future of the nation.

IMHO: It takes a special human being to ascend to the highest court in the land, but are they not still human? Will the President’s humiliation of the Court color the way the Justices look at his signature legislation? One would like to believe not, but the human psyche is complex, and the sub-concious creates its own rules… the President’s arrogance cannot serve to help him in this. Whether the law is overturned or not, the decision will bring a highly unpopular issue back into the debate at the least opportune time for the President’s reelection hopes. The picture of the Justices at the State of the Union comes to mind. Powerless to respond to the President’s criticism, captive to the humiliation of the standing throngs; how ironic that Barack Obama’s political future may now rest in their hands. One questions the wisdom of attacking anyone who has the word “Supreme” in their title. “The mills of the Gods grind slowly, but they grind exceeding small.” Or in the more colloquial, “Payback’s a bitch!”.