How will history view SCOTUS justices on health reform?

By Mary Mosquera
02:50 PM

Now that the Supreme Court justices have heard the arguments for both sides of the health reform law, will the conservative majority fall back on their political leanings to strike down the health reform law and maintain the unsustainable healthcare patchwork, or move the nation a giant step toward the future in health care?

The fact that a 5-4 majority of justices were named by Republican presidents does not bode well for the health reform law. It is widely believed that Justice Anthony Kennedy could be the pivotal vote that could uphold the individual mandate and the remainder of the law.

[Podcast: Inside SCOTUS day 3 on severability, Medicaid with Senior Editor Mary Mosquera.]

However the justices rule, they will have a place in history either in enabling the transformative process of healthcare to gain steam or miring the nation in more political quicksand as tens of millions of uninsured continue to weigh down a system with uncompensated and unnecessary costs.

As flawed as the Patient Protection and Affordable Care Act (ACA) is, it is a means to include the overwhelming majority of Americans in health care instead of fending for themselves and leaving the taxpayers and the insured to pick up the costlier tab, according to Solicitor General Donald Verrilli Jr.

Once the health reform provisions are in practice, the voters can decide where it needs polishing to work more effectively, he said.

At the conclusion of his arguments March 28, Verrilli said Congress struggled with the issue of how to deal with the acute problem of 40 million people without health care for many years, and it made a judgment, one that conformed to what lots of experts thought and the best set of options to handle this problem, he said.

“Maybe they were right; maybe they weren’t. But this is something about which the people of the United States can deliberate and vote, and if they think it needs to be changed, they can change it,” Verrilli said. But he called on the justices to make sure that the federal government maintains these “enumerated powers.”

“This was a judgment of policy that democratically accountable branches of government made by their best lights,” Verrilli said, urging the court to “respect that judgment" uphold the ACA "in its entirety."

The justices will rule in June.

[Related: Inside the court day 2, the individual mandate hearings.]

The 26 states led by Florida and the National Federation of Independent Business that challenged the health reform law view the mandate as the federal government encroaching on individual freedom because it forces those who are healthy or do not want insurance to obtain it.

Politics, of course, has been a part of health reform all along and is a foundation of the lawsuit. Even Justice Antonin Scalia pointed out during the March 28 session, “Is there any chance at all that 26 states opposing it have Republican governors and all of the states supporting it have Democratic governors?”

While the justices intensely grilled Verrilli and his deputy Solicitor General, Edwin Kneedler, and often interrupted and cut off their answers, the federal government technically has a much higher bar to prove their point since the ACA expands on traditional views of federal reach, much as Medicare and Social Security did decades earlier.

Justice Anthony Kennedy suggested that the individual mandate changes the relationship between the government and individuals and so it would have “a heavy burden of justification to show authorization under the Constitution.”

Chief Justice John Roberts Jr. was troubled by the extent of power that Congress could exert in the future to compel people to do all kinds of things. “Once we say there is a market and Congress can require people to participate in it, as some would say, or as you would say, that people are already participating in it ... all bets are off, and you could regulate that market in any rational way,” he said.

[Podcast: Inside the Supreme Court on Day 1 with Senior Editor Mary Mosquera.]

Paul Clement, attorney for the states and former Solicitor General under President George W. Bush, argued for limiting the federal government’s reach and finding alternatives for a solution to the nation’s uninsured.

Justice Sonia Sotomayor countered, however, “My greatest fear is that we’re going to say to the federal government, ‘The bigger the problem, the less your powers are.’”

While the justices will be deciding constitutional questions, let’s hope that they also weigh what health care has the possibility of looking like in the long term if the difficult changes start now.