A Wine Lover’s View of Healthcare and the Supreme Court
Tomorrow the United States Supreme Court will hand down the anxiously anticipated ruling on the Federal Affordable Healthcare law. And if, as many expect, the decision comes on a 5-4 vote of the justices down party lines, I greatly fear the consequences. Wine lovers possess a simply way of understanding the consequences of this kind of outcome I and they should fear.
More than simply dismantling a law that is already in partial effect or upholding a controversial piece of legislation, this kind of split decision down party lines has the potential to ruin the important faith Americans still have in the integrity of the U.S. Supreme Court and the impartiality that the nine justices are thought to possess.
This worries me because I am True Believer. I'm a True believer in the genius of the U.S. Constitution with its separation of powers and implied endorsement of Judicial Review. I'm a true believe that faith in our institutions of self rule and justice is one important source of American Exceptionalism and all the benefits that brings now and for the future. It is not unjustified to believe that with this kind of party-line, split decision on such an important issue will come a severe diminution in Americans' faith in the Court's ability to fairly determine the quality of the laws that govern us, in our ability to pursue real redress of grievances and, with this, in the legitimacy of our federal Constitution.
There is a fine way for wine lovers and the wine trade to imagine the kind of consequences I'm thinking about. Imagine a scandal infecting America's top wine critics and wine review publications. Imagine a scandal in which it is found that The Wine Spectator, The Wine Enthusiast, Wine & Spirits, The Wine Advocate and other standard bearers for wine criticism were found to judge wines based on simply whether they liked the style of wine, rather than evaluating the quality of the wine. Worse, imagine it was determined that they all judged wines based on whether they liked or disliked the winemaker who crafted wine. Worse yet, imagine a scandal that determined that a good review was based on the payment of some sort to the reviewer or publication.
No such scandal has operated at our institutions of wine criticism. But were such a scandal to emerge, it would result in a complete loss of faith in the entire process and philosophy of wine reviewing. It would upend a long, vital and important tradition of wine criticism.
What would result in response to such a scandal is a wholesale change in wine criticism in which the offended would only accept an "austere" form of wine reviewing focused merely on describing components of a wine, completely overtooking any form of critical judgement of the wine. Wine lovers would only trust "reviewers" that described tannin and alcohol levels and fruit components of a wine and offered nothing in the form of critical judgement of the wine. No wine is good. No wine is bad. Wine is. And nothing more.
This would be a disaster for those of us who know for a fact that consumers of wine, both highbrow and lowbrow, desire and demand that their wine critics make a judgement based on certain standards. Excessive brett is bad. Unnecessarily thin and diluted wine is bad. Wine caked with oak to the point that no fruit remains is bad. Red Burgundy that tastes like hot-weather, Australian Shiraz is bad. Balance among the primary components of dry wine is good. Wine characteristics that consistently portray the terroir is good. In other worlds, the lost faith and the resulting new way of understandng wine reviews would be a disaster for the notion that wine is and appropriate target for learned, critical review.
When the Supreme continually splits its decisions on a 5-4 vote based on party lines, we get the sense that the Constitution no longer communicates standards that its various framers over the years explicitly sought to infuse into the document and our body politic. We get the sense instead that basic Constitutional standards have been abandoned for the sake of simple politics and political allegiance. This results in pessimism, doubt, despair, and cynicism. Pessimism, doubt, despair and cynicism causes a retreat from participation, leaving the wheels of government and our own fates as citizens to those shrinking number of constituents who brought us the pessimism, doubt, despair and cynicism in the first place.
I personally possess political leanings in both civic affairs and wine. But no matter how the the Health Care law decision comes down tomorrow, my great hope is the justices' decision is unanimous.
No where in the original Constitution did the framers give the judicial branch the responsibility to interpret the Constitution in their decisions. They were supposed to mete out justice by applying the law.
So much for the claim of so-called orginalists on the Supreme Court that they interpret law as the framers of the Constitution meant it.
As bad as tomorrow’s decision may be, the Citizens United decision, and the court’s recent decision not to hear the Montana case already reflected a court that is completely politicized.
The funny thing about the health care case is that the mandate has been a Republican idea as far back as 1992, in that political party’s effort to prevent single payer health care. But now that the black and Democrat man at the top has embraced it, Republicans have forgotten their own policy.
As for the Supreme: John Adams worried about giving justices lifetime appointments. He wanted them to serve term limits. How prescient was he?
Thomas,
I think there is a strongly implied endorsement of Judicial Review in the Constitution and as explained in Marbury v. Madison. Prior to the the writing of the Constitution, nearly every state constitution that included a judicial brand and separation of powers included the longstanding concept of judicial review.
That said, I agree with you about Citizens United. It was a horrendous decision that will have the kind of lasting impact on the body politic that can’t even me imagined at this point. We need a Constitutional Amendment to fix that.
Well it certainly is a good thing that our sitting president has not turned to politicizing the Supreme Court! As someone said once “but that would be wrong”. No sir it was THEM what did it…
Tom,
A Constitutional Amendment movement is growing–slowly. That route isn’t just slow; it’s probably more divisive than the present court, but it’s the only way to fix that truly disgusting decision.
It’s estimated that $2 billion will go into largely negative advertising campaign for each side. Am I the only one who views that sum of money on an election obscene in general but even worse during an economic malaise like ours? Where the hell are the country’s priorities?
To be sure, partisan politics (and partisan judges) will take us down.
On a lighter note, I love the comment made by Montana’s governor: “I’ll believe that corporations are people when Texas executes one.”
I wish the Supremes would read and comprehend this post. The idea of what will transpire in the upcoming election season isn’t just tiresome; it’s disheartening and terrifying. Our poor democracy!
There is an economics side of this judgeship thing.
Imagine congress reducing the budget of the judiciary by ten percent, as it might do to some quasi-executive branch agencies as well, environmental protection agency among them. Imagine deregulation of the US forest service.
Imagine congressional invitations to private companies to put their company name and logo on state forests, or on state senatorships. We could have the Wine and Beer Wholesalers senator. We could have the Wine Spectator judgeship. There could be an OIVV sponsored no-fault insurance which every American would have to purchase in order to drive a car on all state and federal highways.
It’s true the current supreme court has been unreceptive to most liberal electoral reform and open to adopting “conservative” election law perspectives. But, these supreme court judgeships cause a mellowing over the years in the individuals who are voted into the post by congress.
I may be going too far with the OIVV, although the president once gave a speech in congress (2011) in which he worried that the new precedents in the 5-4 decision in Citizens United left ways for foreign contributions to access US elections, the speculative statement which got associate justice Alito to pantomime his personal dissent quite spontaneously while in the audience at the speech.
But a small number of internationally based entities continue to dominate US wine commerce, at least in a volumetric sense; and, I believe their respective US soil based subsidiaries all contribute to US political campaigns, given that the subsidiary pays US taxes in various forms.
Yet, I agree with Tom W. that the US supreme court often appears changed nowadays; especially, for examle, when I recall the statement of then resigning justice Souter, who observed that for him sitting on the supreme court had become a yearly experience in which he sensed he needed to quit thinking originally; he called it a ‘lobotomy’ metaphorically.
Lifetimes are long now, so we are in for a much slower change in the supreme court than was common when court term lengths were specified.
I figure the supreme court’s healthcare law decision simply will direct congress to alter a few concepts and try again; but the topics the court will select for revision only will be areas in which congress already demonstrated inability to arrive at a compromise. It’s a sort of political professed blamelessness approach; congress employs it routinely, and Scotus is getting pretty crafty at emulating congress’ political techniques. I am prepared to read the entire opinion, though, when it is published.
I submit that most legal interpretations, particularly complicated, precedent-setting ones, are necessarily affected by the political make-up of the judge(s), i.e. the notion of total impartiality is quixotic. We can all agree that the Affordable Care Act – all 2,400 pages with an estimated 100,000 pages of regulations still to come – is complicated and will set quite a precedent. And there will certainly be unintended consequences that always crop up with such sweeping legislation. I will be shocked if the decision is not 5-4.
I further submit for consideration that a split decision does not necessarily indicate that those who vote the Act constitutional are taking their cues from the Democratic leadership. Nor are those who vote to strike it down marching in lock-step with the GOP. Rather, each judge is making an interpretation based on the “gestalt” of his or her life experience. As such, I suspect Ginsburg has voted to uphold because her life experience has resulted in a progressive interpretation of the Constitution, which makes conservatives apoplectic, and is why Bill Clinton nominated her. And I suspect Scalia has voted to strike because his world view is that of a strict constructionist, which makes liberals crazy, and is why Ronald Regan nominated him.
Those who rise to the level of SCOTUS have huge egos too, which gives me faith that each renders impartial decisions, inasmuch as such a thing is possible.
Justice Scalia must resign
Justice Antonin Scalia needs to resign from the Supreme Court.
He’d have a lot of things to do. He’s a fine public speaker and teacher. He’d be a heck of a columnist and blogger. But he really seems to aspire to being a politician — and that’s the problem.
So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line.
Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama’s move had nothing to do with the case in question. Scalia just wanted you to know where he stood.
“After this case was argued and while it was under consideration, the secretary of homeland security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants,” Scalia said. “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.”
What boggles the mind is that Scalia thought it proper to jump into this political argument. And when he went on to a broader denunciation of federal policies, he sounded just like an Arizona Senate candidate.
“Arizona bears the brunt of the country’s illegal immigration problem,” the politician-justice proclaimed. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are simply unwilling to do so.
“Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it.” Cue the tea party rally applause.
As it happens, Obama has stepped up immigration enforcement. But if the 76-year-old justice wants to dispute this, he is perfectly free as a citizen to join the political fray and take on the president. But he cannot be a blatantly political actor and a justice at the same time.
Unaccountable power can lead to arrogance. That’s why justices typically feel bound by rules and conventions that Scalia seems to take joy in ignoring. Recall a 2004 incident. Three weeks after the Supreme Court announced it would hear a case over whether the White House needed to turn over documents from an energy task force that Dick Cheney had headed, Scalia went off on Air Force Two for a duck-hunting trip with the vice president.
Scalia scoffed at the idea that he should recuse himself. “My recusal is required if . . . my ‘impartiality might reasonably be questioned,’ ” he wrote in a 21-page memo. Well, yes. But there was no cause for worry, Scalia explained, since he never hunted with Cheney “in the same blind or had other opportunity for private conversation.”
Don’t you feel better? And can you just imagine what the right wing would have said if Vice President Biden had a case before the court and went duck hunting with Justice Elena Kagan?
Then there was the speech Scalia gave at Switzerland’s University of Fribourg a few weeks before the court was to hear a case involving the rights of Guantanamo detainees.
“I am astounded at the world reaction to Guantanamo,” he declared in response to a question. “We are in a war. We are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in a war. War is war and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It’s a crazy idea to me.”
It was a fine speech for a campaign gathering, the appropriate venue for a man so eager to brand the things he disagrees with as crazy or mind-boggling. Scalia should free himself to pursue his true vocation. We can then use his resignation as an occasion for a searching debate over just how political this Supreme Court has become.
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Agree about Scalia. He is a disgrace to the concept of judicial restraint.
Plus, Roberts should explain his lie to Congress during confirmation regarding his view of the need to honor legal precedent. He Citizens United is one of a few precedents that he has struck at, when he literally helped engineer to bring the case to the Supremes.
Well, all this talk about the Supremes and there they go making a decision on the health care mandate that certainly surprised me.
The court found a way to make the decision without defeating its bent away from the Commerce Clause argument by allowing the mandate through Congress’ taxing ability.
Never say never!
Thomas:
I remain very disappointed with the 5-4 decision. It is highly divisive and will continuous down the road toward a highly cynical electorate. As for Roberts’ vote, I think we will one day learn that it was a political move, not a judicial move.
Tom,
I don’t disagree. In fact, all moves on the court appear to be political.
The bright side of this, the way I see it, is that Romney has a tougher go of it, even though he’s already spinning it the way Roberts intended conservatives to spin it when he purposely pointed out that the ruling was a verdict on constitutionality and not an opinion of the law itself.
Another potential bright spot: if and when legislators ever come to their senses about the crummy health insurance situation and finally do what every reasonable legislature in the civilized world has done, make health care a right for taxpayers rather than a strictly commercial activity for those who can afford it, ideologues won’t be able to contest a health care tax to pay for a single-payer system.
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