Archive for the ‘Health Care’ Category

Playing the Hand

Patient-ProtectionI’m not sure, but this photo may be the last time Democrats smiled about the Affordable Care Act or, if you prefer, Obamacare. President Obama put his signature on his signature legislative accomplishment on March 23, 2010 and, until the last few weeks, from a political standpoint the news has been pretty awful.

First the admissions: Democrats – thank Nancy Pelosi as well as the president for this – completely lost control of any coherent message about the law. Republicans did a masterful job of characterizing the ACA as government run amok. Obama, so the story goes, has Socialized health care in America and shredded the Constitution in the process. Sarah Palin chimed in with her nonsense talk about “death panels.” Democrats failed to respond or failed to respond effectively. Obama fumbled, screwed up, mislead, fabricated (chose your word) the business about liking and keeping your health plan. The roll-out was a first-class mess and we all know about the stupid website. Fundamentally the law, thanks to log rolling in Congress with the drug companies, the device manufactures, doctors, hospitals and insurance companies, is a massively complicated pile of legalize. It was almost as though the president and his supporters were saying, “We could tell you how it will work and how you will benefit, but you’d have to get sick first…”

More importantly from a political point of view the supporters of the law, chiefly including the Commander-in-Chief, never adopted a coherent, consistent, engaging message that might have allowed them to talk to the American people about an issue that has been on the agenda of every Democratic president since Franklin Roosevelt. The debate became about process, ideology and partisanship and not about a better more secure future.

In politics, as in corn flakes, you can’t sell an idea without a believable message. The failure to offer a coherent, believable story about the law is nothing short of political malpractice. Critics will say, of course, that the law is such a mess that it can’t be defended or marketed, but I don’t buy that. Even George W. Bush, initially at least, sold the invasion of Iraq. Creating a system for millions of Americans to have health insurance and a more secure life is surely an easier sell than a war.

Still, four years later the law is the law, upheld by the Supreme Court (or at least by five justices), a survivor of a hundred different efforts by Republicans to repeal it or, better yet from their perspective, use it as a blunt instrument to pummel Democrats in another mid-term election. Apparently – crank up the irony meter – Americans now hate the law so much they have signed up in numbers that have even surprised the law’s biggest supporters. The polls tell us the law is a huge loser – although repeal is even more unpopular – and yet the GOP has placed nearly all of its mid-term eggs in the “we hate Obamacare” basket. All of the party’s 2016 hopefuls have bought into the notion that Obama’s law is the worst things since, well, maybe since Social Security, yet they offer nothing in the way of a better alternative.

In one of his pithy and incisive essays Garry Wills points out that supporters of the law will likely never turn the opponents around. Obama, Wills writes, “made the mistake of thinking that facts matter when a cult is involved. Obamacare is now, for many, haloed with hate, to be fought against with all one’s life. Retaining certitude about its essential evil is a matter of self-respect, honor for one’s allies in the cause, and loathing for one’s opponents. It is a religious commitment.”

Wills reminds us that Social Security was once almost as hated as the ACA, but somehow nearly 80 years on it still stands. “Repealing Obamacare will eventually go the way of repealing the New Deal,” Wills opines. “But the opposition will never fade entirely away—and it may well be strong enough in this year’s elections to determine the outcome. It is something people are willing to sacrifice for and feel noble about. Creeds are not built up out of facts. They are what make people reject all evidence that guns are more the cause of crime than the cure for it. The best preservative for unreason is to make a religion of it.”

The editorial page of the Wall Street Journal with an almost daily discourse on the “failures of the law” or any given George Will column easily serve as the Bible for this new religion. Will’s most recent column excoriating the law and the president concludes with this sweeping indictment of all things Obama: “progressivism is…a top-down, continent-wide tissue of taxes, mandates and other coercions. Is the debate about it over? Not quite.” Reads like a sermon to me.

But let’s talk politics. If Garry Wills is right (and George Will is his proof point) and it follows that Republican voters who have made a religion out of hating Obamacare are the most likely to turn out and vote in the November Congressional elections, what are Democrats to do?

They have two basic choices: Continue to flounder around and try to pretend they can whistle their way past the political graveyard without defending Obama’s law or they can embrace the obvious and begin – finally – to vigorously defend the law and its impact. One of this year’s imperiled Democrats, Louisiana Sen. Mary Landrieu, has adopted Option Two.

“It’s a solid law that needs improvement,” Landrieu told the Washington Post. “My opponent [Republican Bill Cassidy] offers nothing but repeal, repeal, and repeal. And even with all the law’s setbacks, we’re seeing benefits for thousands of people in Louisiana.”

Landrieu continued, “I think the benefits that people have received are worth fighting for.” She citing an end to discrimination against preexisting conditions and extended coverage for young adults on parents’ plans. ”I think Bill Cassidy is going to be at a distinct disadvantage. He has insurance, but he’s also denying it to the 242,000 people” who would qualify if Louisiana expanded Medicaid as it can opt do under the Affordable Care Act.

Her opponent, Landrieu says, “also wants to take coverage away from tens of thousands who have gotten it for the first time.”

There is an old adage in politics that holds “being for something is better than being against something.” Democrats don’t have a choice. They can try to campaign this year by being for a law that admittedly is very controversial and almost universally misunderstood, but that is also of obvious advantage to millions of Americans or they sink again into the defensive crouch they have largely adopted since that smiling day back in March 2010.

Republicans are agin’ it. We know that for certain. Yet, voters must be just as confused about where Republicans stand on issues – providing health care for millions of uninsured, expanding Medicaid, keeping young folks on their parents insurance plans longer and providing coverage for preexisting conditions – as they are confused about what is and isn’t part of the controversial law. This is ground, as Sen. Landrieu suggests, for a real election year debate.

Democrats may not win a religious fight this year over Obamacare, but they won’t even have a chance unless they start throwing a few punches rather than trying to absorb those the other side will continue throwing. Defending a law that more than eight million Americans have embraced and that holds out the hope for a much improved quality of life for millions more seems like something worth fighting for because it really is better to be for something than against everything.

Many Republicans of the generation that created Social Security never came to fully embrace the program, but time, events and public opinion overtook them. Franklin Roosevelt, the father of modern American politics, loved to taunt his opponents by asking them what they would do differently and whether they had an alternative. Those are still good questions.

I’m Marc’s Prostate

getty_rm_photo_of_man_in_doctors_office

As a kid growing up it always seemed that we had a daily newspaper in the house, as well as a magazine or two. We watched the network evening news, of course, everyone did, but for real information we turned to print. Very old school. My Dad was particularly fond of Reader’s Digest and would often consume the entire contents of the latest edition in one sitting. The articles were mostly short, crisply written and, in matters of politics, almost always had a right-of-center slant.

The Digest also had jokes that could be repeated safely in polite company. I particularly remember pages of jokes called “Humor in Uniform” (for the World War II generation like my parents ) and “Life in These United States,” humorous little stories about everyday life.  Sometime in the 1960’s the Digest also started publishing a series of short articles on various aspects of human health all written from the perspective of the vital organ featured. I distinctly remember Dad pointing out to me that I needed to read and absorb a little feature entitled “I’m Joe’s Heart.”

“I’m certainly no beauty,” Joe’s Heart says writing in the first person (or organ). “I weigh 12 ounces, am red-brown in color, and have an unimpressive shape. I am the dedicated slave of —well, let’s call him Joe. Joe is 45, ruggedly good-looking, has a pretty wife, three children and an excellent job. Joe has made it. Me? I’m Joe’s heart.”

Joe’s heart goes on to report that Joe probably eats too much fat, has gained weight, smokes and doesn’t exercise enough. Sound familiar? It was a good, gentle and authoritatively delivered message that remains as appropriate today as it was to the Don Draper generation in the 1960’s. Reader’s Digest pieces on “Joe’s Liver” and “Joe’s Kidney” followed. I don’t recall that there was a Reader’s Digest piece on Joe’s Prostate this was, after all,  way before WebMD and “men’s health” (and women’s, for that matter) wasn’t much discussed in the polite company where Dad told his jokes.

Things have changed for the better in that regard with the Internet full to overflowing with good, authoritative information on “Joe’s Prostate,” or in the case that I have become most familiar with – my prostate.

Like more than 200,000 American men annually I was diagnosed recently with prostate cancer. Next to skin cancer, prostate cancer in the most commonly occurring cancer among American men. The disease claimed more than 28,000 lives in 2009, the last year for which we have the most complete figures. There is almost truth to the line I’ve heard and now use myself – “if you live long enough, I’ll get prostate cancer.” Prostate cancer is indeed widespread and it takes a particular gruesome toll among African-American men.

My case – special to me, for sure – nonetheless seems fairly typical in many ways. My own concerns about heart health lead me some years ago to regularly monitor blood pressure, cholesterol and other blood markers. Often these simple blood tests will also include the somewhat controversial screen for prostate cancer – the PSA test, or  prostatic specific antigen. Early this year my PSA level took a jump in the wrong direction. A re-test confirmed the increase and signaled cause for concern. A number of good and caring health care professionals advised a biopsy of, what until this spring had been, my somewhat mysterious prostate. The biopsy, conducted in a doctor’s office, confirmed cancer.

Like millions of other Americans I now know what it’s like to have a doctor straightforwardly tell you – “you have cancer.” Wow. Didn’t see that coming. It is a moment of coming face-to-face with your own mortality. One’s attention is immediately fixed.

Like any unwelcome news there was for me, at least, a period of denial. There must be some mistake, right? Cancer doesn’t run in the family. From a health standpoint I haven’t been behaving that badly. Maybe too much red meat and too few veggies, but I get my exercise. What gives? Soon enough denial gave way to questions about what can be done to treat the unwelcome visitor in the nether regions of the male anatomy? Answering that question became a research mission of the kind I have never before undertaken.

I offer only two pieces of advice in this little prostate post with the first being the importance of becoming your own best advocate when confronted with any health challenge. Doctors and other medical professionals are (generally) wonderful people, committed, smart, caring and often overwhelmed. They exist not just to treat your condition, but to be a walking, talking sources of first-rate professional information. In order to take full advantage of their knowledge, however, I’m convinced you must do your own homework and engage in the development of your own treatment strategy. Knowledge really is power and information about your health care options truly is empowering.

Since April I’ve spent hours reading, consulting friends who have dealt with the same issue, and quizzing health care professionals trying to learn about what I now consider my favorite gland. I gave that gland up to surgery a little over a week ago after it became clear to me that what the surgeon’s call a “radical prostatectomy” was my best option given factors like age, overall health and the state of my cancer. The surgery, again from my perspective, was a very big deal. Thousands of men undergo this treatment every year, but facing major surgery, time in hospital and recovery was a brand new experience for me.

Friends and family faced this new challenge with me and 10 days on I’m feeling better and better. There will be months ahead of coping with and overcoming the undesirable side effects of prostate removal, but thanks to early detection, superb medical care and those who have helped – they know who they are – I feel today like a 60 year old guy with a new lease on life.

Second piece of advice: don’t be confused about the controversy and debate over the utility of PSA testing after age 40. Every male needs to have enough information in order to formulate a personal point a view on this central issue of male health. In my case, because a savvy family practice doctor has rather routinely checked my PSA levels, which led to my early diagnosis, I am an advocate of the checks on a regular basis. The rap against the test is that it’s not precise, produces false positives and causes many men to undergo expensive testing that may not be needed.

In short, whatever you decide for yourself, don’t be a victim of a lack of knowledge. Take charge of your own health. Decide what works for you. It just might save your life. In my case I’m convinced regular testing and early diagnosis did save my life.

Finally to all the family and friends who have sent endless good wishes my way for the last couple of months I can only say – thanks a million. In the busy world of the 21st Century it is all too easy to take for granted, or not fully appreciate, the awesome power of people who take the time and trouble to care. Take it from me: it means the world.

Late last week a call from my surgeon confirmed that the pathology work up on my former prostate and the other tissue he removed during surgery was negative. My cancer had not spread beyond the prostate. In the textbooks they call that a good outcome.

My personal brush with the disease that is described as the “most rapidly rising” in most countries around the world was both frightening and enlightening. I am richly blessed to have had access to (and been able to afford) world-class health care and the tools to seek out information upon which to make life changing (and saving) decisions. I come away with a new appreciation for the American public health crisis of obesity, poor nutrition and lack of access to care and I’m convinced that knowledge and awareness of a whole range of health care issues is at the heart of a healthier country.

I’ve always taken good health for granted. I now consider it a gift, indeed a miracle.

Historic

Roberts: The Chief Makes History

There will be days and days of analysis – some of it even important – of today’s historic Supreme Court decision on the Affordable Care Act, or as those who hate the law say – Obamacare. We’ll hear every possible interpretation and then some.

Here is my initial take on one sliver of the story; the fact that Chief Justice John Roberts authored the majority opinion upholding the law, went against four other conservatives on the Court with whom he often finds compatibility and maybe – just maybe – wrote himself firmly into the history books.

I think most Court watchers would say that a Chief Justice – any Chief Justice – always wants to be in the majority. Roberts worked hard to get there even while taking pains to throw a rhetorical political bone to those who will see him as an updated version of former Justice David Souter, an appointee of the first George Bush who served to infuriate many conservatives.

As Roberts famously said during his confirmation hearing, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire… I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Today he made good on his umpire statement and admittedly, while it is way too early to make definitive judgments, Roberts has likely also influenced his place in history. In the same way that Chief Justices Charles Evans Hughes in the 1930’s and Earl Warren in the 1950’s ultimately led their Court’s in a series of landmark rulings; rulings that generally supported a more expansive view of federal power, Roberts has parted company with the right wing of the Court and perhaps charted a new course for himself.

Roberts has clearly antagonized conservatives and permitted, at least in one very important case, a more expansive role for the government in health care. He also did it without affirming a more expansive interpretation of the Commerce Clause, which really would have wounded the right.

It’s fun, but ultimately futile, to speculate about the inner dynamics of a Court of such sharp divides and strong personalities, but I can speculate that it would have been interesting to overhear the conference where the Chief told Antonin Scalia, Sam Alito, Clarence Thomas and Anthony Kennedy that he would write the majority opinion siding with the Court’s four liberals.

The health care story, with all of its political and policy dimensions, is far from a finished story. There is much more to come. But speculating again, when the history of this decision is ultimately written it may well describe John Roberts as the guy who cast a deciding vote on a law that, with all its faults, was aiming to provide health insurance coverage for every American, a goal of many Americans since at least Teddy Roosevelt. Fifty years from now Roberts’ opinion may well be seen as putting him on the right side of history.

Roberts is obviously a serious man and no one reaches the pinnacle of judicial power in the United States who does not appreciate the unique role in our system played by the Chief Justice of our Supreme Court. Roberts has surely read the history and knows we can count the truly great Chiefs on three fingers – Marshall, Hughes and Warren.

History treats that trio well because each led the Court in new ways during tumultuous times and with a determination to break new ground. Each was a highly political judge and passionately independent. Each evolved over time on the bench and ultimately each rejected the notion that the Constitution is a purely static document that can be applied in 2012 the same way it was in 1787.

If nothing else, Chief Justice Roberts may find – he’s a young and energetic 57 with many years left to lead a Court – that his historic decision in NFIB v. Sebelius is a liberating moment for him. Roberts may now have the liberty to find his own path to history, separate from either the four liberals or four conservatives on his Court, and that journey may have begun today.

P.S. – I predicted in passing earlier this week that the Court would strike down the Affordable Care Act. Like Winston Churchill said, I have often had to eat my words and always find it a wholesome diet!

 

Supreme Power

Courts, Controversy and Conservatives

There is an old and respected approach to judicial review of controversial and essentially political issues that holds that judges should do almost everything possible to avoid wading into the dense thicket of politics.

If Chief Justice John Roberts and his fellow conservatives on the U.S. Supreme Court were really conservative they would rule on the controversial Affordable Care Act (Obamacare) on the narrowest possible grounds. They might even seriously considered not ruling on the merits of the law under the old and accepted principle that the case is simply “not ripe” for adjudication since no one – at least not yet – has been “harmed” in the legal sense by the health insurance mandate and other aspects of the still new law.

Hardly anyone thinks either of those approaches is likely from the Roberts Court, particularly after last week’s marathon hearings. You will get even money today that Roberts will lead his thin 5-4 conservative majority in the direction of at least ruling the mandate unconstitutional. The odds are a bit longer that the Court will throw out the entire law. As they say, time will tell.

What interests me today is what President Obama, the former constitutional law professor, will do if the high court strikes down all or part of his signature accomplishment? A little history may be instructive; history I suspect Professor Obama knows well.

The most striking parallel to the current situation happened in 1935. The then conservative dominated Supreme Court declared unconstitutional the signature domestic piece of President Franklin D. Roosevelt’s legislation to battle the Great Depression. Chief Justice Charles Evans Hughes, every bit as much if not more a politician than Roberts, assembled a unanimous Court – including three real liberals – to deep six key features of FDR’s National Industrial Recovery Act.

Roosevelt was brought low by a famously modest case -Schechter Poultry Company v. United States – a decision that prompted the great liberal Justice Louis Brandeis to remark to an FDR associate that the case marked the end of “this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.” Given that sentiment, Brandeis, were he on the Court today, might just be a vote against Obamacare.

Roosevelt’s reaction was, of course, to blast the Court as living in “a horse and buggy” era with regard to the Commerce Clause of the Constitution and after his re-election FDR attempted, with disastrous consequences, to enlarge the Supreme Court. Roosevelt’s ideas about “judicial reform” were so outrageous that no president since has dare even suggest action to limit the scope or change the make-up of the Supreme Court. Instead we now fight epic battles over every new justice who is appointed and partisan political considerations, never far removed from judicial nominations, is now guaranteed to be front and center.

Obama will not, I predict, pull a Roosevelt. He knows, as the wise Jon Meacham wrote recently, “Justified or not, the Supreme Court has a kind of sacred status in American life. For whatever reason, Presidents can safely run against Congress, and vice versa, but I think there is an inherent popular aversion to assaults on the court itself. Perhaps it has to do with an instinctive belief that life needs umpires, even ones who blow calls now and then.”

Obama could, in theory, dust off some really old ideas and suggest a Constitutional amendment, as the great Wisconsin Sen. Robert La Follette did in the 1920’s, that would allow Congress to overturn Court decisions or, under certain circumstances, put Supreme Court decisions up to a popular vote. Of course, President Obama won’t do anything of the sort.

Obama is then really only left with the power of persuasion. He might suggest, as one wag did, that when the opportunity for insurance coverage for millions disappears they take their complaints to Antonin Scalia. Better yet, Obama could begin a real national conversation – including involing United States Senators who approve Supreme Court nominees – about the kind of Supreme Court the nation needs in the 21st Century.

You have to hand it to Republicans, they have been running against the Court for years. What prominent GOP lawmaker doesn’t have the talking points down regarding “activist, liberal judges” who legislate from the bench? That line of political positioning has been enormously successful in positioning a very conservative majority on the current Supreme Court to get away with precisely what conservatives have been critical of for years – legislating from the bench.

Set aside for a moment the merits of the Affordable Care Act and merely consider what some of the justices from the left and right said last week. As columnist E.J. Dionne noted, Justice Samuel Alito sounded like a House subcommittee chairman quoting Congressional Budget Office figures and wondered whether the government could mandate that we all have burial insurance, while Scalia went off with a weird analogy about the government mandating broccoli. The liberals didn’t comport themselves much better with some commentators noting that they tried to come to the rhetorical aide of the Obama Administration’s Solicitor General who had trouble at times articulating the best arguments in favor of the law.

But judges aren’t supposed to be super legislators, they shouldn’t care about policy or vote counting (beyond counting to five) and they have no business trying to bail out a lawyer who is fumbling his case. Such behavior paints the entire Court with an activist brush. What is needed with the current case, and I would suggest with the money in politics case Citizens United and the who will be president case Bush v. Gore is real, reasoned judicial restraint.

The Court has a legitimate role in the health care case in defining – or refining – the scope of the Commerce Clause, but the justice could also acknowledge the obvious. We’ll have an election in a few months where Obamacare will be one of the fundamental issues. All the Republican candidates say they want to repeal the law. Democrats will fight to keep it. That is the kind of messy and important debate we have elections to resolve. Real judicial restraint would find the Supreme Court – conservatives and liberals – searching for a super majority way to rule narrowly and leave the politics to those who are elected to vote on policy questions.

If the Court overturns the health care legislation, the president will undoubtedly take issue with the decision, but he ought also to use the moment to educate more broadly about how judges should approach their jobs, the Court’s sacred status notwithstanding.

 

2012 Wildcard

Elections and the Court

When the Obama Justice Department announced last week that it had asked the United States Supreme Court for an expedited review of the Affordable Care Act (ACA) – Obamacare, health care reform, etc. – the government’s lawyers confidentially predicted that the current court would uphold the law. In making that claim the Justice Department cited several precedents in our history where the Supreme Court has reviewed and upheld once controversial laws that have now become established features of American life.

“Throughout history,” the Department said in a statement, “there have been similar challenges to other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed. We believe the challenges to the Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.”

The Justice Department release represents more than a little wishful thinking and an even larger dose of selective historical memory. At least once before, in a case that has some striking parallels to what is unfolding with the Affordable Care Act, the Supreme Court considered and struck down major provisions of a Democratic administration’s domestic agenda. It happened in 1935 and the political fallout, the subsequent election campaign and the president’s policy response produced the greatest Constitutional confrontations since the Civil War.

Franklin Roosevelt signed the National Industrial Recovery Act (NIRA) into law on June 16, 1933. The law created, among other things, the National Recovery Administration, symbolized by the “blue eagle” that appeared on signs in store windows, in propaganda-like newsreels and in vast demonstrations staged in major U.S. cities.

The NIRA granted to the president vast powers – unprecedented really – to promulgate industrial codes of fair competition. The effect was to form industrial cartels that were not suppose to engage in price fixing, but came very close to doing just that, as well as turning the capitalist concept of competition on its head.

The code provision had been controversial, particularly in the Senate, where some legislators who abhorred “monopoly” – senators like Borah of Idaho and Wheeler of Montana – were concerned the law essentially did violence to the Sherman Antitrust Act, a law on the book since 1890.

The NIRA also established rights to collective bargaining, regulated working conditions and some wages and, in a separate section, created the Public Works Administration (PWA), the major infrastructure investment vehicle of the New Deal.

There were many problems administering the complex NIRA and the inevitable legal challenges began almost immediately. Eventually on May 27, 1935, a unanimous U.S. Supreme Court ruled major parts of the NIRA unconstitutional. Roosevelt was stunned and outraged, even though FDR’s Justice Department, like Barack Obama’s Justice Department with the health care legislation, had tried to pick the case and the timing to take the issue to the nation’s highest court.

Writing for a united Court, that like today’s Court frequently found itself sharply divided between conservatives and liberals, Chief Justice Charles Evans Hughes, zeroed in on Constitutional problems with two features of the law that FDR considered the centerpiece of the domestic agenda he hoped would lift the economy out of the Great Depression. Like the arguments around the Affordable Care Act, the issue in 1935 was the Commerce Clause of the Constitution.

As Hughes wrote, “If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government.” Sounds a lot like the arguments over the health care bill’s individual mandate provision.

The ruling in the Schechter Poultry Corporation case that brought down the NIRA is today generally considered a very narrow 1930’s interpretation of the Commerce Clause and FDR certainly thought so. He famously complained to a room full of reporters gathered in his office that the Supreme Court had adopted a “horse and buggy” view of the nation’s economy and particularly of interstate commerce. The Commerce Clause is at the heart of the ACA debate because critics charge a central federal government has no business mandating that individuals must purchase health insurance. We’ll see. 

It would be unfair to stretch the parallels between 1935 and 2011 too far and it is possible the Supreme Court my opt for an artful dodge to avoid deciding the health care case before next year’s election. It is also true that we live in vastly different times, although the politics around the Great Depression feel a good deal like the politics around the Great Recession.

Since 1935, the Court has vastly expanded our understanding of what constitutes interstate commerce and the ruling Roosevelt disliked so much came more than a year before he sought re-election to a second term. Barack Obama, by contrast, may get his ruling on the Affordable Care Act smack dab in the middle of his re-election effort and, while the NIRA was controversial it had little of the polarizing political impact of health care.

After his initial “horse and buggy” zinger had been delivered, Roosevelt generally avoided mentioning the Court, while he privately seethed about the “nine old men” who had dismantled his handiwork in the midst of a national economic crisis. Once safety re-elected in 1936 Roosevelt came down on the Court with a ton of bricks, serving up his ill-fated plan to “pack the court” by adding up to six new justices who would presumably liberalize a reactionary court. The Congress refused to go along with such an overreach and Roosevelt suffered a massive defeat right on the heels of winning a second term in a landslide.

One way or the other, Obama looks to get his chance to be pleased or disappointed by the Supreme Court in the middle of a high stakes campaign season. Most Court analysts say they count four votes in favor of upholding the controversial law and four against. Obama may think about issuing a quick invitation for a golf game to Justice Anthony Kennedy. By all accounts he’ll decide the fate of the Affordable Care Act.

There is one more historical footnote related to the 1935 case that, if he’s thought about it, might well give former law professor Obama some political heartburn. In 1935 the most liberal member of the Supreme Court was the venerated Justice Louis Brandeis, who history records as one of the all-time great justices. Roosevelt was stunned when the man he called “Isaiah” ruled against him.

Robing up before the Court delivered its decision on the NIRA, Justice Brandeis told Roosevelt aide Tommy Corcoran, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”

 

The Judges Decide

The Supremes and Health Care Policy

As the first anniversary of the controversial national health care reform legislation – or more correctly health insurance reform legislation – came and went a while back there was increasing acceptance of the notion that the U.S. Supreme Court will get the last word on the issue that continues to shape our politics.

That word will likely be handed down across the street from the U.S. Capitol right in the middle of the next presidential election campaign.

One of the most vocal defenders of the controversial law, New York Rep. Anthony Weiner, admitted recently what many are thinking: the Supreme Court will overturn the law, or at least the portion that mandates individual coverage. “If lightning strikes, and it turns out that as many of us believe, the Supreme Court turns out to be a third political branch of government and they strike down the mandate — big deal,” Weiner said. “Big deal!” Weiner argues that rejection of the individual mandate requirement will re-open the debate about the so called “public option.” We’ll see.

It will be fascinating if, as Weiner and others predict, the nine justices of the nation’s highest court enter this political thicket. There was for a time in our history a self-imposed reluctance on the part of the court to stick its nose far into the “political” territory of the Congress and the president. Barring a sharp question of Constitutionality, judges once thought it the “conservative” position to defer to the elected branches of government on questions of broad policy.

Conservatives would argue that those days of real judicial restraint became sand through the hour glass during the “activist” days of the Warren Court in the 1950’s and 1960’s. Liberals argue, on the other hand, that it has been “conservative” courts, beginning most importantly during the Reagan Administration, that have ranged far and wide over the political territory that some suggest is better left to legislators and to the one person in our system who is elected by all the people – the president.

But whether you consider it “activist” that the Supreme Court, almost eagerly it seemed, stepped into the Florida recount in 2000 and ultimately ruled in a way that put George W. Bush in the White House, or that Chief Justice Earl Warren worked hard to engineer a unanimous Supreme Court decision in 1954 to overturn state laws allowing racial segregation, the fact is that the Supreme Court – and particularly the very conservative majority on the Roberts Court – is poised to impact the political narrative of 2012. It has happened before. The Brown v. Board of Education decision on segregation, and subsequent Congressional efforts to enforce and expand on the decision, were arguably a catalyst for the systematic and still continuing swing of the southern United States from the Democratic to Republican parties. Richard Nixon’s now famous – or infamous – “southern strategy” in 1968 successfully capitalized on the sense that “activist” liberal judges were remaking the country in a frightening way.

Earlier in the 20th Century, another unanimous Supreme Court, this time in 1935 and with a conservative majority, happily overturned the cornerstone of Franklin Roosevelt’s New Deal reforms by rejecting much of the National Industrial Recovery Act. FDR was livid, particularly with “liberal” judges like Louis Brandeis who were willing to reject his reforms that enjoyed broad public and Congressional support. Roosevelt contended the “nine old men” on the 1930’s Court were intent on imposing on the country a “horse and bugging” definition of interstate commerce, while rejecting the needs of small business and individuals. Safely re-elected in 1936, Roosevelt tried to get even by “packing the court.” He lost badly and the political bitterness and impact of that fight lingered for years.

In a splendidly provocative and highly entertaining new book, The Conservative Assault on the Constitution, Erwin Chemerinsky, the founding dean of the UC Irvine Law School, and a widely respected Constitutional scholar, argues that it is conservative judges, at least since the days of Nixon, who have done the most to change the way we think about – and judges apply – the 21st Century Constitution. “

Since 1968,” Chemerinsky writes, “conservatives have sought to remake constitutional law and they largely have succeeded. They initially set out to overturn the decisions of the Warren Court, but soon began to aggressively pursue a vision of constitutional law that consistently favors government power over individual rights … and the interests of businesses over individual employees and consumers. Because decisions come one at a time over years and because the Court never overruled the Roe v. Wade abortion decision (though it came within one vote of doing so), it is easy to underestimate how successful the conservative assault on the Constitution has been.”

Professor Chemerinskey cites numerous cases, involving everything from the rights of criminal defendants to what he calls the “re-segregation” of American schools, to buttress his point. Perhaps the highest profile recent example – Citizens United – found the Roberts Court, apparently with little hesitation, overturning a century of settled law when it allowed, on First Amendment grounds, unlimited and unregulated corporate money to re-enter American politics.

Whether you agree or not that “conservative judges” have become the real judicial activists, it’s indisputable that “liberals” have lost the battle to frame broad political battles around the court’s make-up and decisions. Richard Nixon drew the political lines that have defined more liberal justices as the activists, while conservatives talk almost exclusively of Justices like Roberts, Scalia and Thomas as staunch defenders of the Constitution, motivated by real “judicial restraint.”

We will soon see how well that framing hangs together when a conservative Roberts Court overturns the liberal health policy reform of a Democratic Congress and president. Barack Obama already had his mini-FDR moment when he directly criticized, to the justice’s faces, the Court’s Citizens decision. The president may soon have reason, in the middle of his re-election campaign, to take on the “activist Roberts Court” again and once again the Supreme Court – appointed for life and presumably insulated from the daily grind of partisan politics – could dramatically impact American politics.