It’s the law: The health care decision
by Gary Redenbacher
Aug 02, 2012 | 1244 views | 1 1 comments | 9 9 recommendations | email to a friend | print

The recent decision by the United States Supreme Court upholding the Affordable Care Act will likely go down as the most important decision of the past several decades.

It doesn’t take a sociologist to understand that it will have profound social implications. Judging from the hue and cry, the political fallout is only just beginning. Although the social and political ramifications dominate the newswires, I am more interested in the legal ramifications.

Don’t forget that justices are political appointees. Still, some appointees turn out to be outstanding justices, such as Louis Brandeis and Benjamin Cardozo. On the California Supreme Court, we had the judicial giant Roger Traynor. Justices such as these two have the uncanny ability to cut through enormous social injustice cemented in place by political stalemate or social structure.

Their decisions were not always popular at the time, however. Traynor, as early as 1948, struck down a California law prohibiting miscegenation. That was six years before the United States Supreme Court decided Brown v. Board of Education, the landmark ruling that overturned the infamous “separate but equal” ruling of Plessy v. Ferguson decided 60 years earlier.

In its history, the Supreme Court has authored some horrifically bad opinions. The very worst were the racist decisions, such as Plessy. Scholars universally agree that the Dred Scott decision of 1857 was especially reprehensible. That decision, with its atrocious language, held that blacks were not citizens and not protected by the Constitution. Then, in 1944, in Korematsu v. United States, six of nine justices agreed that our Japanese neighbors on the West Coast had to be relocated to concentration camps.

I suppose one could strain an argument that the justices in Plessy were at least giving lip service to the notion that non-whites deserved to be on par with whites. The reality, however, is that it illustrated that the Supreme Court justices would flock around any law saying their children didn’t have to attend schools with black children. By their decision in Korematsu, the Supremes proved that blatant racism was still institutionalized at the very highest levels in American society.

Nevertheless, there are Constitutional scholars who believe that, by and large, the Supreme Court has avoided overtly political decisions — up until the past 12 years.

Before the Bush v. Gore decision that settled the 2000 presidential election, the Supreme Court was viewed favorably by about 75 percent of the American public. That was saying something for a public that views most other governmental institutions as overwhelmingly ineffectual.

That approval rating dropped precipitously to about 46 percent at the end of 2011.

Enter John Roberts, our chief justice. Judging by the seven years Roberts has been on the court, most would describe him as reliably conservative.

Critics describe him as another political hack, especially since he joined the majority in the highly questionable Citizens United case, which stated that corporations were people and that money was the equivalent of free speech. To this, the New Yorker replied, with apologies to Shakespeare, “If you prick a corporation, does it not bleed? If you tickle it, does it not laugh? If you poison it, does it not die?”

So, it was a surprise to just about everyone when Roberts cast the deciding vote upholding the Affordable Care Act. The question is why. Although I am not a Constitutional scholar or pundit of the court, I believe a number of factors came into play.

First, the strenuous criticism following Citizens United came not just from the partisan politicos, but from highly respected scholars.

Second, a strong majority of Constitutional scholars lined up declaring that the ACA was constitutional.

I also believe that Roberts was vitally concerned that the reputation of the Supreme Court, which has taken such a beating in recent years, had to be restored.

Some observers believe that Roberts cares about his legacy and didn’t want to be dismissed as a narrow-minded ideologue like Antonin Scalia or a simpleton following in lockstep like Clarence Thomas. He knew that history would view a decision against the ACA as a political act.

That doesn’t mean that there are no political or social arguments against the ACA, and Roberts plainly expressed that he had personal reservations about the law. What it means is that Roberts ruled according to law — not his personal politics.

What does this mean for us locally? In the past 10 years or so, I find myself advising clients more and more that even in cases of black-letter law, we cannot count on rulings that follow that law. That wasn’t the case the first 10 years I practiced. In only rare cases did judges not have a sound legal reasoning for their decisions. I wonder whether the political decisions by the Supreme Court since Gore v. Bush convinced some judges to rule according to their whim rather than the law.

“If the Supreme Court can ignore the law, why not us?” some might ask. 

Roberts’ decision is a knell to the courts that ours is a nation guided by law, not political whim. That is a legal ramification that is good for all of us.

- Gary Redenbacher of Scotts Valley is an attorney in private practice. Email him at

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David Smith
August 03, 2012
I don't see the connection Gary makes between the Robert's vote breaking a tie and it's message that this is a nation of laws. The Supreme Court has abandoned it's function of interpreting the constitution in favor of social action many times, even before Bush/Kerry. Look at the strip search ruling and the foolish reference Justice Kennedy made to Timothy McVeigh having been pulled over before the Oklahoma City bombing.

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