Federal Courts and Nominations

Health care, other hot issues promise a landmark high court term

By Bill Mears, CNN Supreme Court Producer

updated 11:52 AM EST, Fri September 30, 2011

Washington (CNN) — One of the little-known prerogatives of the U.S. Supreme Court is the justices’ discretion to refuse any case on the merits presented to them for review. Only one in 10 petitions actually gets accepted. But though the justices usually say no, when epic disputes arrive at the courthouse steps — by tradition and political reality — the nine members know they are powerless to turn away.

Think segregation. Think abortion. And now the latest divisive debate over the role of government: health care reform.

Monumental. Unprecedented. Life-changing. For a town that oozes hyperbole, the stakes in an almost certain election-year Supreme Court review of health care cannot be overstated.

The justices kick off their new term on Monday with a full slate of interesting appeals already on their docket. But the nation’s highest court has yet to decide whether it will tackle the signature accomplishment thus far of Barack Obama’s presidency: the Patient Protection and Affordable Care Act, the sweeping legislation that has received decidedly mixed reviews in the lower federal courts. An eventual Supreme Court ruling can be expected by June, right in the thick of a contentious presidential race.

Few doubt the nine-member bench will take on as many as three separate appeals over health care. The only question is precisely when.

“The Supreme Court term so far is shaping up to be pretty interesting, but it could become absolutely explosive and enthralling, the most interesting one in a century,” said Thomas Goldstein, a prominent appellate attorney and founder of Scotusblog.com. “If, by chance, the court took up health care, gay marriage, immigration, affirmative action this term, it would be impossible to take your eyes away from the Supreme Court.”

One health care appeal from Michigan has already been filed with high court. Others from Florida and Virginia are expected shortly.


“Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate.” — Alexis de Tocqueville, Democracy in America (1835)

The Patient Protection and Affordable Care Act, has about 450 provisions, but one stands as the focus of the judicial dispute, and threatens to collapse the entire legislation. The “individual mandate” provision requires most Americans to purchase health insurance by 2014 or face a financial penalty, as a way of spreading health care costs to a larger pool of individuals.

Various states have argued the Constitution’s Commerce Clause does not give government the authority to force Americans to purchase a commercial product like health insurance they may not want or need. The states equate such a requirement to a burdensome regulation of “inactivity.”

The Justice Department counters by saying that since every American will need medical care at some point in their lives, individuals do not “choose” to participate in the health care market. Federal officials cite 2008 figures of $43 billion in uncompensated costs from the millions of uninsured people who receive health services, costs that are shifted to insurance companies and passed on to consumers.

The mandate requires most Americans to obtain at least a minimum level of coverage, as a way of spreading health care costs to a larger pool of individuals.
One federal appeals court has found the act unconstitutional, another has said it is a proper exercise of congressional mandate, while a third court has ruled against the states on technical grounds, saying local officials lack authority to even go into to court and argue the individual mandate issue. Twenty-eight states and countless individuals and groups have sued the administration.

Health care reform, a top Democratic priority since the Truman administration, was passed by the previous Congress in a series of virtually party-line votes. Obama signed the act into law in March 2010. The law is widely considered to be the signature legislative accomplishment of the president’s first two years in office.

Among other things, the measure was designed to help millions of uninsured and underinsured Americans receive adequate and affordable health care through a series of government-imposed mandates and subsidies. The federal government stated in court that 45 million Americans last year lacked health insurance, roughly 15 percent of the country’s population.

Critics have equated the measure to socialized medicine, fearing that a bloated government bureaucracy will result in higher taxes and diminished health care services.

Opponents derisively labeled the measure “Obamacare.” Republican leaders, who captured the House of Representatives in the 2010 midterm elections, have vowed to overturn or severely trim the law.

“People joke about whether the government can tell you to eat broccoli. And everyone says ‘oh no, the government would never do that.’ But, under the Democrats’ argument, they could do just that,” said Carrie Severino, chief counsel at the right-leaning Judicial Crisis Network. “And that’s really frightening, to have a government that could make you buy any product, that could say you have to join a health club because it’s going to be better for your for your health, claiming that will keep our health care costs down. There’s an argument they can make on almost any conceivable activity.”

But liberal activists say their ideological opposites are acting like hypocrites by raising this health care challenge in court.

“It just illustrates the fact that everyone now sees the Supreme Court as the ultimate arbiter of not just important legal disputes, but huge policy disputes,” said Doug Kendall, president of the Constitutional Accountability Center. “And it’s conservatives who are now the ones pushing an agenda on the courts to be more activist, to undo in the judicial system what they tried to stop in the political system.”


The opportunity to rule on a landmark case like health care brings with it precedent-setting opportunities to either expand or deflate not only the power of Congress and the executive, but of the judiciary’s own prestige and authority as well. In some ways it is a perilous path, since the courts have increasingly become a political football.

“We’re in a little bit of a political death spiral for the Supreme Court, as ideologues on the left and right attack justices with whom they disagree, maybe decreasing the public’s confidence in the Supreme Court,” said Scotusblog.com’s Goldstein. “And as they take up health care, abortion cases, immigration — all of those issues — there are going to be more excuses to attack the justices.”

An unusual convergence has created the scenario of the court taking on up to a half-dozen big issues in the next year or two. Besides health care there are:
–Gay marriage: Various civil rights challenges to state and federal laws defining marriage as only between one woman and one man.

–Immigration: May states step in and enforce borders and detain illegal immigrants when they say federal officials have failed to do so, or is immigration enforcement exclusively the role of the national government?

–Affirmative action: Do racial and gender preferences in areas like public school admissions continue to be a socially acceptable step?

–Church-state: A number of separate appeals dealing with memorial crosses on public land; a Ten Commandments display in a courtroom; and a state-mandated “moment of silence” for public school students.

–Abortion: Pending state ballot initiatives asking voters to decide whether life begins at conception would potentially give the unborn greater constitutional protections.

But health care remains the overriding focus.

“My assumption is the court will have to take on the issue, I think they’re not going to try to duck it,” said Carter Phillips, who has argued more cases before the high court — 71 and counting — than any current private attorney. “So, the court ought to jump in at the first available opportunity. I’d be shocked, actually, if they didn’t do that.”

So expect nine unelected justices and the tricky issues like health care they confront to be major talking points in next year’s state and federal political races. Their votes could ultimately decide whom Americans choose on Election Day 2012.

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