Meals From The Marketplace

            For all too many Americans, the announcement that Supreme Court Justice John Paul Stevens would be retiring at the end of the Court’s current term probably fell into the category of “so what?” news.  The Court is the most under-rated branch of government under the system of checks and balances that is part of the genius of the U.S. Constitution.  It is covered only briefly (almost as an asterisk) in most high school civics courses.

            The other two branches, the Presidency and the Congress, are studied constantly, from the point somewhere around the sixth grade (or earlier?) when most students memorize the chronological order of the country’s 43 presidents and learn what major accomplishments (or lack thereof) marked each president’s tenure in office.

            America’s Congress, consisting of the Senate and the House of Representatives, is perhaps less studied in basic education of the K-12 variety, but it is ever present in the daily news that consumes headlines in local papers and commands coverage on nightly cable broadcasts.  And, in this highly partisan age of the new millennium, most Americans are all too familiar with the identity of the Speaker of the House, even if they aren’t entirely sure of how she directs the passage of legislation.

            But the United States Supreme Court is an altogether different entity in terms of educational focus and news coverage.  Who are the nine individuals who sit on the Court and what, exactly, do they do?  And, more importantly, why does it matter to the average American?

            John Paul Stevens was appointed to the Court in 1975 by then President Gerald Ford.  He was, at the time, a Circuit Court Judge in Chicago, a member of the Seventh Circuit of the U.S. Court of Appeals.  (The details of the federal circuit courts, including what they do and who sits on them, is arcane stuff for even some practicing attorneys, so let’s leave an explanation of those matters for another day.)

            Stevens had been appointed to the Court of Appeals by Richard Nixon in 1970 after having practiced law in his own law firm, where he specialized in anti-trust law.  He was viewed as a moderately conservative judge on the circuit court and was approved for the Supreme Court unanimously by the Senate when Ford nominated him to fill the position of William Douglas, who had been one of the Court’s staunchest liberals for forty years.

            Stevens continued to reflect a moderately conservative philosophy in the early years of his tenure on the Court, but around the time that William Rehnquist was elevated from Associate Justice to Chief Justice (in 1986 by Ronald Reagan), his opinions began to reflect a more liberal bent.  And, over the last quarter of a century (a mark of how long he has served on the Court) he has become the acknowledged leader of the liberal wing of the Court.

            The current makeup of the Court is generally viewed to be split along ideological lines.  Four justices are strong conservatives, four are moderately liberal and one (Justice Anthony Kennedy) is moderately conservative.  This split has existed for well over twenty years, and with President Obama expected to nominate someone left of center to replace Stevens, that split will likely continue for the foreseeable future. 

            But the Stevens’ resignation is big news nevertheless, because the Court’s work is far more complex than a simple counting of noses might suggest.  Who replaces Stevens, even assuming he or she will be a solid liberal vote, will most definitely matter.  Here’s why.

            The work of the Court consists of rendering decisions in cases involving either the Constitution or federal laws (to include federal regulations).  Those decisions are announced in written opinions, and those opinions control the way in which lower courts and regulatory agencies dispense justice or carry out the programs they are empowered to administer.

            Stated more directly, when the Supreme Court takes on a case for decision, two things occur.  First of all, the actual litigants get a final resolution (in most instances) of their dispute.  In other words, the Court considers the issues in the case, decides how those issues should be resolved, and writes an opinion that resolves the matter.

            That’s the easy part.  The hard part is the effect the decision in that particular case between those specific litigants will have on the rest of the country.  And it’s in this regard that the written opinions of the Court become critical, because those opinions immediately have precedential value.  In other words, the opinions of the Court become, in practical and legal effect, the law of the land.

            Consider for a moment the power of Congress to enact laws.  In this respect, that power pales in comparison to the power of the Court.  Congress can spend months debating over a specific provision in pending legislation (as was the case with the recently passed health care legislation) only to have the Supreme Court determine in a single case that the provision as written means something completely different than what many in Congress thought it did. 

            That decision by the Court will then supersede any agency regulations that had been previously promulgated based on the assumed meaning of the statutory provision.  Suddenly, federal law will have been dramatically changed by virtue of the written opinion of at least five members of the nine-member Court.

            And this fact is why the replacement of Justice Stevens will be so important.  As the Court’s senior Justice (and the leader of the liberal wing), he could (and often did) sway the way opinions were worded.  Thereby, he was able to keep the Court’s conservative wing in check and reduce the potential move to the right in any number of areas of the law.  Without someone of Stevens’ stature, that same conservative wing may feel more emboldened to move more aggressively on any number of issues that come before the Court.

            So pay attention to President Obama’s nominee to take Stevens’ place.  He or she will have some big shoes to fill in joining the most under-rated branch of the federal government.

            So much has been said by both sides of the American political divide about the new health care system that Congress finally approved last month that a clear understanding of the new law might seem impossible to attain.

             On the one hand, it is hysterically described as the beginning of the end of America’s pre-eminence as an economic power.  On the other, it is ebulliently viewed as the first step towards a low-cost, full-coverage health care system that will re-invigorate the entire economy.

             In fact, neither prognosis accurately portrays what the new law accomplishes or what it might portend.

             Part of the problem is the political battleground that continues to bedevil rational discussion and meaningful debate.  Democrats have been cowed for years (probably since Ronald Reagan’s heyday) by an aggressive conservative media machine that has made anything with a liberal label or a tax-and-spend identification much like a political third rail, i.e., instant defeat. 

             But now responsible Republicans have also fallen prey to the fear of disapproval from the vocal right.  The tea party movement is the latest incarnation of this slice of American politics.  It gains strength from the likes of Sarah Palin and Glenn Beck, who have even been mentioned as an ideal presidential ticket, should the movement decide to form a third party.  Whatever else might be said of Palin and Beck, they would have to be considered one of the most unlikely presidential tickets since Barry Goldwater and Bill Miller (who?) led the Republicans to a resounding defeat in 1964.  (Ironically, Goldwater’s brand of conservatism might well be considered barely acceptable in today’s version of the right.)

             No responsible Republican would really compare Barack Obama to Adolph Hitler, but many are fearful of disparaging the comparison when confronted with the Tea Bagger rally signs.  Instead they speak of the right of everyone to express all manner of views, as if free speech is all they care about.  (One wonders how those same Republicans would respond if signs of Ronald Reagan with a Hitlerian mustache appeared at a rally.)

             And so, with Democrats afraid to call themselves liberals or to be associated with anything that sounds like a tax-and-spend initiative, and with Republicans afraid of showing any agreement with anything the fascist/socialist/communist (take your pick) Obama administration proposes, the health care debate (such as it was) was dominated by angry predictions of Armageddon (from Republicans) and by delirious shouts of Utopia finally realized (from Democrats).

             And when the bill was finally passed last month, Republicans immediately decried the undemocratic way it had been enacted and vowed to get it repealed before the ink was dry, and Democrats, led by the President, took great pleasure in noting that the sky was not falling, while ignoring the fact that most of the new system doesn’t take effect for four years. 

            It has been an altogether silly extension of the noise that marked much of the year-long consideration of the various proposals that were floated at one time or another before things finally came together over the last six weeks or so.

             If there are reasons to fear the worst and hope for the best, here they are:

             At its worst, the new health care system the law creates will be a new unfunded entitlement program that will explode the national debt.  At its best the new system will reduce the cost of medical care by increasing the number of Americans who get non-emergency treatment and by increasing the overall health of the populace.

             What the new system provides is greater regulation of the health insurance industry.  It does not nationalize health care.  Doctors will still work in non-governmental positions and will still be paid through private insurance policies.  There will be more of those policies, as the new system mandates coverage (either through employment or through individually-purchased plans) for about 30 million Americans who are currently uninsured.  To this extent, insurance companies will have larger pools of insured customers to spread the cost of coverage. 

             The expectation/hope is that with that larger pool of insured customers, the health insurance industry should be able to shoulder the increased burdens they will incur under the new system.  With more healthy customers paying premiums, the overall cost (to include the coverage for those who are less healthy and thus require more medical care) should stay level at worst (if not come down). 

            The main provisions in the new system that will be a potential burden for insurance companies are mandatory acceptance of pre-existing conditions (no longer a lawful basis for denying coverage) and portability (ability of a laid-off worker to take the policy to a new employer). 

             The new system will also mandate that employers provide health insurance for their employees.  This mandate (for all businesses with 50 or more employees) is supposed to be offset by tax breaks and other forms of subsidies provided by the government.  In addition, insurance premium increases will be subject to government oversight.

             Those last points (employer mandates and insurance oversight) are what generate both lukewarm support and no small amount of fear from most business owners (especially those who own small businesses).  The hope is that their insurance costs will decrease (or at least become manageable in terms of any increases).  The fear is that the government subsidies and tax credits will be insufficient to cover increased costs and that the mandates will then drive them out of business.

             But the other side of that coin is equally unattractive, for if future governments (we’re talking Congress and the President here, folks) provide the required subsidies without increasing revenues to cover those subsidies, the whole system will become an extremely expensive unfunded mandate. 

             That prospect is what drove many conservatives’ passionate opposition to the bill, for if the new system only provides a new entitlement for one-tenth of the population without finding revenues to pay for the entitlement, the federal budget could blow through the roof.

             Which brings us back to the widely accepted anathema of tax-and-spend liberalism. Ultimately, you have to pay the piper.