Three Supreme Court Myths – The Ninth Justice

National Journal

At both ends of the ideological spectrum, politicians, activists, journalists, and academics like to stress how big a change the next Supreme Court justice could make in the course of the law. The appointment will, says the conventional wisdom, be among President Obama’s most important legacies.

Many also stress how far to the right (say liberals) or left (say conservatives) of center the Supreme Court has been in recent years, the better to dramatize the need to correct the perceived imbalance.

And the dominant media image has been of "the conservative Court" (recent articles in The Washington Post), or "the Supreme Court’s conservative majority" (New York Times editorials), or a Court "as conservative as it’s been in nearly a century" (Newsweek commentary by my friend Dahlia Lithwick).

All this brings to mind three contrarian theses.

First, it simply won’t make much difference in the next five or so years — if ever — whom Obama picks from the lists of moderately liberal, extremely liberal, and just plain liberal candidates leaked by the White House.

Indeed, I can’t think of a single case or issue that would foreseeably be decided differently depending on whether the nominee turns out to be the most or the least liberal of those under serious consideration.

The Court is by nature quite stable. Imagine, for example, that Obama nominated and the Senate confirmed a person more liberal than either John Paul Stevens or any other current justice. No matter how passionate, or how brilliant, or how persuasive, he or she could move the law no further than at least four others were willing to go. And given the justices’ fierce independence, it’s hard to imagine any of them lurching leftward at the urging of the new kid on the block.

Health Law Not A Sure Bet In Court

National Journal

Editor’s Note: This is an updated version of Stuart Taylor’s Dec. 12 Opening Argument column.

What chances of success await the lawsuits challenging the constitutionality of the new health insurance reform law filed by 14 state attorneys general this week, with more lawsuits by states, individuals, and companies in the pipeline?

Not much, according to most of the academic experts who have weighed in. They confidently predict that the Supreme Court will (if the case gets that far) uphold the new law’s major provisions. These include the much-debated mandate for individuals to buy comprehensive health insurance unless they’re already covered by employer-based plans, and also the requirement that states spend billions of dollars expanding their Medicaid programs (unless they withdraw) and administering the complex new law.

These experts cite the justices’ very broad reading since the New Deal of Congress’ powers to regulate interstate commerce and to tax and spend.


The need to govern an ever more interconnected nation has spawned a long line of precedents expanding the commerce power.


I, too, would bet on the major provisions of the 2,400-page law being upheld. But "these challenges are not frivolous," as the Washington Post said in an editorial, and "the case is not as clear-cut as many legal scholars have argued."

The fact is that the costly federal mandates that the law imposes on state governments, individuals and families are without close precedents. And the lopsided academic response is attributable partly, though not entirely, to the lopsidedly liberal policy preferences of the professoriate.

Indeed, most scholars and other analysts have virtually ignored the new law’s most vulnerable (in my opinion) major provision, which the plaintiff states say violates their sovereignty.

Health Reform And Truth-Telling

National Journal

President Obama is rightly concerned that our health care system leaves many Americans without insurance when they need it most and is hugely inefficient, with costs soaring toward crisis proportions unless something changes.

Few of Obama’s Republican critics have signed on to any credible plan of their own to address these inexorably growing problems. Some have reneged on earlier support for mandating that individuals buy insurance. And many hurl demagogic accusations that the president would usher in "death panels" and overheated alarums ("You lie!") about peripheral issues such as whether illegal immigrants or abortion-seekers would benefit.

As for voters, most seem satisfied with their own health care — still the world’s best in important ways — and unwilling either to pay more to help less fortunate people or make even small sacrifices to control costs. They also seem oblivious to the real problem underlying the "death panel" demagogy, which is the unavoidable need to hold down the 30 percent of Medicare spending that goes to sometimes-unwanted, often-not-very-beneficial treatments for chronically ill patients in the last two years of life.

So it would be unrealistic to expect complete candor from any president about the costs and risks of extending health insurance to 30 million more Americans. If Obama can meet the truthfulness test applied by Huckleberry Finn to his creator Mark Twain — "There was things which he stretched, but mainly he told the truth" — that would be good enough for me.

But can he? Despite Obama’s good intentions, I can’t help thinking that the deviations from truth-telling identified by various critics go to the heart of his plan, compromise his credibility, and could accelerate health-cost inflation with ruinous consequences for the economy. Examples:

Opening Argument – Better Justice: Bush’s Missed Opportunity

National Journal

"Tort reform" is a dreary phrase for what could be a noble and exciting endeavor. It could be about fixing our system of justice so that more victims maimed by reckless conduct will get the compensation they need, when they need it; so that fewer good doctors and good companies will get soaked for misfortunes that weren’t their fault; so that the insurance premiums and prices we all pay will no longer be inflated by legal waste, fraud, and abuse.

Opening Argument – The Threat That Bush, Kerry — and the Voters — Ignore

National Journal

We all know that the retirement and health care demands of the 76 million Baby Boomers will put unprecedented strain on the already deficit-ridden federal budget, beginning about 2008 and growing for many decades. We also know that we have become dangerously dependent on foreign lenders to finance both our government’s profligacy and the yawning gap between what the American people consume and what we produce.

Legal Affairs – What a Cure! Higher Medical Costs and More Uninsured

National Journal

If you want an inkling of what the McCain-Kennedy-Edwards "patients’ bill of rights" would do, consider the cases of some plaintiffs who have already found ways around the federal law shield-which the bill would dismantle-that now protects managed care plans from liability for most coverage decisions.

Life, Death, and Imperial Judges

As I started to read the recent rulings of two U.S. Courts of Appeals discovering that terminally ill patients have a constitutional right to kill themselves with lethal drugs prescribed by any willing physician, I was reminded of Judge Learned Hand’s line about "Platonic Guardians."

I looked it up: "Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward vagaries of popular assemblies," Hand wrote in 1958. "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

Some of the nation’s best minds think that a legal rule authorizing physician-assisted suicide "erases a fundamental ethical line and opens medical practice to unconscionable abuse," in the words of the columnist (and lapsed psychiatrist) Charles Krauthammer. He adds that any such rule would open the way for intolerable pressure from self-interested relatives and others for "the elderly and infirm to take drugs to hasten death."

On the other side, some of the nation’s best minds stress that thousands of suffering patients desperately want and need the kind of help in hastening the end that-under current law-some doctors cannot provide, and others will provide only in secrecy, for fear of being prosecuted as criminals.

It is an agonizing public policy dilemma, and one of vast importance. Both elite and popular values on the subject are evolving at warp speed, as one ethical line in the sand after another is washed away by racing medical technology and soaring medical costs, and as ever more diabolical choices are inflicted on us all.

So why should the ultimate decision on this matter come from a bunch of judges, in the guise of divining some fixed meaning for all time from a 128-year-old amendment that has nothing explicit to say about any "right to die"?

Beyond No-Fault: A Modest Proposal

Largely unnoticed amid the Bush-Quayle campaign’s puerile lawyer-bashing, a few ideas are kicking around that could save billions of dollars in legal waste.

This column is about one such idea, a modest proposal for federal legislation to save up to $30 billion a year in car-insurance premiums. The Bush campaign is said to be flirting with the proposal. It would give conniptions to lawyers who feed at the personal-injury trough; and for that reason, it might be a good test of Bill Clinton’s willingness to embrace sensible tort reforms.

The proposal, conceived by Professor Jeffrey O’Connell of the University of Virginia Law School and Michael Horowitz of the Manhattan Institute, would, in essence, permit individual consumers to choose whether to cut their auto-insurance premiums dramatically by giving up their rights to seek, and their duties to pay, compensation for any negligently caused "pain and suffering." It would also assure people prompt payment for their own economic losses without regard to fault.

Most people (especially poor people) would jump at the chance, especially with premiums exceeding $1,000 a year in many areas. Rational consumers insure against out-of-pocket losses such as medical costs, not against intangible harms like pain, for which dollars are not real compensation.

That’s why you wouldn’t even think about, say, paying a higher health-insurance premium to get compensation for any pain and suffering that you might endure as a result of an accident at home.

If enacted, the O’Connell-Horowitz proposal could lead to cuts of as much as 60 percent in the average car-insurance premium’s personal-injury component, according to a Rand Institute study. That would amount to a 30-percent reduction in the overall premium, since about half of it is for property damage.