Trying to Read Anthony Kennedy’s Mind: Health Care and the Supreme Court Revisited

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As Massimo Calabresi and David Von Drehle write in their cover story this week, Justice Anthony Kennedy is often the decider when it comes to Supreme Court cases of great import. He toggles between the conservative and liberal sides of the bench and predicting where he will land on a particular matter is impossible. This is true with one of the most consequential cases to ever come before the High Court–whether the Affordable Care Act is constitutional. The court is expected to issue its decision on the health care law later this month.

Whether the justices uphold Obama’s health care law in full, strike down part of it or cancel it out entirely will have a huge impact on the 2012 presidential election, not to mention the health care of millions of Americans. When supporters and opponents of the law argued the case back in March, most watchers focused on Kennedy to see if they could decipher how he feels about the matter. A look back at what he said during the hearings provides more confusion than insight, especially when one considers that, as Calabresi and Von Drehle report, Kennedy sometimes makes his decisions at the last minute. Still, the temptation to try and decode Kennedy’s comments is too strong to resist. Below is a healthy sampling of his comments and questions on the health care case.

(MORE: Why Obamacare May Stand: Reading Justice Kennedy, the Supreme Court’s Swing Vote)

The central question in the health care case is whether the individual mandate, the requirement that by 2014 all Americans have health insurance, is constitutional. Everyone agrees that the federal government has the constitutional power to regulate “commerce.” Obama Administration lawyers argue the health insurance market is commerce and therefore within bounds for regulation. Challengers say that the commerce the feds want to regulate doesn’t exist now and that the government is trying to regulate “inactivity,” i.e. a lack of insurance, which is an overreach. Kennedy cut straight to this matter, asking a question that seemed to take the challengers argument at face value:

Can you create commerce in order to regulate it?

This question made Obamacare supporters cringe. But later, Kennedy seemed to take the opposite tack, appearing to agree with the Obama Administration that uninsured Americans are still a part of the insurance market, even if they lack coverage.

They are in the market in the sense that they are creating a risk that the market must account for.

Kennedy also summed up the Administration’s argument about why it can force uninsured Americans to buy coverage, even though it can’t force people to buy other goods and services.

The government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.

(MORE: Inside the Supreme Court: Why Obamacare Supporters Are Getting So Nervous)

As with all Supreme Court cases, the side hoping the court doesn’t act – this time, it’s the Administration hoping the ACA stays as it is – tries to persuade the Justices that the matter before them is just like other laws that the court has ruled constitutional. So Kennedy made ACA supporters nervous when he used the words “unique” and “unprecedented” in the March hearings, and when he talked about the ACA “changing the relation of the individual to the government.”

Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?


The reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.

(MORE: High Noon for Health Care)

Challengers to the health care law say if the Supreme Court strikes down the individual mandate, it must also invalidate the rest of the law, which contains hundreds, if not thousands, of other provisions altering the U.S. health care market. The Administration argues that most of the ACA is unaffected by the individual mandate and it can be “severed” from the law without killing the whole thing. This is a political question as much as a constitutional question. What sensible politician would have voted for the ACA’s huge Medicare cuts if they weren’t getting something they could campaign on, like a broad expansion of coverage to some 30 million Americans? Here, Kennedy acknowledges this political reality and the difficulty the High Court would have if it tried to untangle Congress’s political deals.

Suppose you had party A wants proposal number 1, party B wants proposal number 2. Completely unrelated. One is airline rates, the other is milk regulation. And we — and they decide them together. The procedural rules are these have to be voted on as one. They are both passed. Then one is declared unconstitutional. The other can operate completely independently. Now, we know that Congress would not have intended to pass one without the other. Is that the end of it, or is there some different test? Because we don’t want to go into legislative history, that’s intrusive…

Also on the matter of whether the individual mandate could be severed from the rest of the ACA, an Administration lawyer argued that the Justices should exercise “judicial restraint,” and not strike down a massive law just because one provision might be unconstitutional. Here, Kennedy appeared to disagree with the government. Judicial restraint, he implied, could go either way.

When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike -than striking the whole.

So things can be argued one way – or the other. Got it.

In their cover story, Calabresi and Von Drehle trace the riddle of Anthony Kennedy all the way back from Washington to his childhood in California politics. Don’t miss it.