Supreme Court Year in Review

Chief Justice Roberts Did the Right Thing—but It’s Still a Bad Law
An email conversation about the news of the day.
June 29 2012 10:47 AM

Supreme Court Year in Review

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Chief Justice Roberts did the right thing—but it’s still a bad law.

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Rob Donnelly.

Dear Walter, Dahlia, Emily, and Jack,

I have a few further thoughts on the health care decision. Are they too late? I've never entirely grasped the format of our discussion; the mention of breakfast particularly baffles me. And maybe when the court ends its term, the discussants, like the participants in the trial of the Jack of Hearts at the end of Alice's Adventures in Wonderland, turn into playing cards and are scattered to the winds. But anyway, here are my further thoughts:

Professor Dellinger said in reference to the health care decision: "What is most important today is not constitutional theory or presidential politics, but the enormous improvement in access to health care for millions of Americans, including increased access to preventive care such as mammograms and birth control, provisions allowing young people to stay on their parents' health insurance, provisions prohibiting insurance companies from turning down people who have pre-existing conditions or from increasing premiums to unaffordable levels for families who have a child born with a birth defect. Those are the most important winners today." I don't agree. I am pleased that the Supreme Court upheld the law, but I don't think it's a good law.

The Washington Post has an excellent economic journalist named Robert Samuelson, and he had a column a week or two ago in which he persuasively criticized the law. There are three basic criticisms. The first is that it is so long and complex that actually no one knows what its consequences will be. It was an irresponsible enactment. Second, it was very badly timed. Creating economic uncertainty is the very last thing one wants to do during a depression, because, as Keynes argued, it is uncertainty that deepens a depression and retards recovery from it, because a rational and extremely common reaction to uncertainty is to freeze. The health care industry is the largest in the United States, and the law was bound to affect the costs of medical care (which of course include health insurance premiums) for business and for people in the labor force (whether employed or self-employed) in ways that could not be forecast. I know one is supposed to call the economic malaise in which the nation is sunk, which in a couple of months will be four years old, the "Great Recession," but I call it a depression. It is not as severe as the 1930s depression, yet it may have as profound economic and political consequences. It merited and did not receive the full attention of government.

Third, the law will increase health care costs, and hence the federal deficit, which is already staggering. I agree with liberal economists that the current deficit, though huge, is nothing much to worry about, because of the extremely low cost at which the U.S. Treasury can borrow these days (thanks to Europe's economic distress and lack of private demand for loans), even long term. I agree that the stimulus of February 2009 should have been larger, with the government borrowing heavily and using the borrowed money to finance projects that would employ lots of workers. But the deficit cannot be allowed to grow indefinitely, and the health care law will help it to grow indefinitely. There is no way the nation can add 30 million people to the private or public health insurance rolls without experiencing higher health costs. The reason is that insured people demand and receive more health care than the uninsured. That is explicit in Professor Dellinger's reference to health costs that are "unaffordable" by the uninsured. The care they will now get may improve their health. They may live longer. But the longer people live, the more medical care they need.

I think the best one can say for the law is that it has drawn attention to the manifold problems of our health care system. As a result, or partial result, of the law, some modest improvements, such as recommendations against excessive screening for rare medical problems, are in the works, although they will be resisted by most doctors, especially specialists, who are most doctors nowadays. But I think any cost savings that ensue will be swamped by the 30 million new eager health care consumers.

All this is germane to the Supreme Court's health care decision because if the court had wanted to make "policy judgments," it could have had a field day. Chief Justice Roberts in his opinion said that that's not the Supreme Court's business. A legal realist would say that most Supreme Court decisions in constitutional cases are policy judgments—inevitably, because of the Framers' and ratifiers' inexplicable failure to peer into the future and observe 20th-century American society. Where was their foresight? (I hope readers understand the sarcasm.) I think Roberts was quite right to say that "we [the Justices, but it is true of the entire American judiciary] possess neither the expertise nor the prerogative to make policy judgments." I would emphasize lack of expertise as a general problem of the American judiciary. But policy judgments are inescapable when dealing with the Constitution, and I think the best interpretation of what the court did in its health care decision was to make a prudential judgment to allow the law to stand, a judgment that I imagine is based to a significant extent on the hammering the court would have taken had it struck the law down. And, to recur to Samuelson's concern, the uncertainty created by the law would have been compounded rather than dissipated by its invalidation, because of uncertainty as to how Congress would respond, given the popularity of provisions (insurance for pre-existing conditions and coverage of kids up to age 26 by their parents' health insurance) that the mandate is intended to finance and that would have gone down the drain had the dissenters had their way, and because of the further fact that many health providers have already taken steps to comply with the law, and undoing those steps would be costly and confusing. A Donnybrook was averted.

And speaking of dissenters: Would they have had the courage of their convictions had they been able to pick up a fifth vote? Or would they have been like the dog that barks ferociously when it's behind a fence, but open the gate and it slinks away timidly?

Read the rest of Slate’s coverage on the Supreme Court upholding the Affordable Care Act.

Richard A. Posner is a judge, U.S. Court of Appeals for the 7th Circuit, and a senior lecturer at the University of Chicago Law School.

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