What the health care decision really did

The Supreme Court decision upholding the constitutionality of the Affordable Care Act surely did not resolve our country's health care dilemma. The implications of the court's determination of the inadequacy of the Commerce Clause to support the act (obiter dicta, really) and its reliance upon the taxing power to support the penalty for failure to purchase health care insurance will doubtless be the subjects of many judicial determinations for years to come.

The Supreme Court's decision will certainly not resolve the decades-old controversy concerning the free market and government control. It will not resolve differences of opinion regarding the individual mandate -- can the federal government require Americans to eat broccoli?

The Supreme Court's opinion, and for that matter the ultimate fate of the Affordable Care Act, will do little to solve the ultimate health care problems of this nation. Our country will continue to expend 17.5 percent of gross domestic product to obtain what other first-world nations obtain for one-third of that. Fifty million Americans (many of whom are children) will continue to have no health care insurance whatsoever.

The Supreme Court decision will not bring us closer to understanding why, in a country that offers to some the finest health care available in the world, mortality and morbidity rates and infant mortality are among the worst in the first world.

Notwithstanding, however, these and other limitations upon its impact, the Supreme Court's Affordable Care Act decision was nothing short of momentous. The opinion of Chief Justice Roberts, foreseen by a few prescient scholars of the Supreme Court but startling to most others, transcends this nation's health care travails. Indeed, it transcends any programmatic issue before this country.

As occurred when this country turned against President Roosevelt's New Deal efforts to pack the Supreme Court and make it a third political branch of government, last month's Supreme Court decision confirmed this country's allegiance to a sine qua non of constitutional democracy, the concept of judicial supremacy.

In the decision, the chief justice, thought by many until then to be a silk-stocking dilettante incapable of writing an opinion inconsistent with his politics, honored his promise to the Senate and Americans that if confirmed he would not make rules, but would interpret them in accordance with the documents by which Americans agree to be governed.

Until this decision, Chief Justice Roberts' decisions in virtually every area, discrimination of various forms, marital issues, affirmative action, corporate powers and others, reflected unwavering support for powerful interests and little sympathy for the powerless.

From his judicial history and the questions propounded at oral argument, most observers speculated this decision would, like the decisions in Gore v. Bush and Citizens United v. Federal Election Commission, overlook precedents and torture established principles to reach a politically desired conclusion.

The uncommonly serious expression on Chief Justice Roberts' face as he entered the courtroom suggested that the forthcoming opinion might do something else.

There is no question that the Supreme Court's opinion in National Federation of Independent Business, et al. v. Sebelius, Secretary of Health and Human Services, et al., merits wholly aside, will be viewed from now on as Chief Justice Roberts' pledge of allegiance to the principles established in the earliest and most ineradicable decisions of the Supreme Court -- Marbury v. Madison and McCulloch v. Maryland.

The decision of Chief Justice Roberts in this case confirms, at this fragile and frightening time, our country's unalterable commitment to the concept of judicial supremacy. Although it is certain that Chief Justice Roberts found no joy upholding what has become known as "Obamacare," he can surely rejoice at having shown even those most cynical about his judicial temperament that, in the end, he will place his commitment to American government above his political preferences.

Americans will probably never agree on the best way to provide health care in this country. There should be no disagreement, however, on the overarching statement made by last month's Supreme Court opinion. While I never thought I would be one to say it, you did us proud last week, Chief Justice John Roberts.


James M. Kramon is of counsel to Kramon & Graham P.A. in Baltimore.

Published: Wed, Jul 18, 2012


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