Watching the recent developments at the Supreme Court, as the justices considered the fate of the Affordable Care Act, it was easy to be discouraged. Several conservative judges seemed to be parroting right-wing talking points, ignoring their own precedents, and starting with an answer while working backwards.
But one of the most frustrating aspects of the oral arguments was the fact that several justices, most notably on the right, seemed deeply confused about key policy details, though they were convinced they knew what they were talking about.
The ignorance problem on the high court may have sweeping consequences.
A possible misunderstanding about President Barack Obama’s health care overhaul could cloud Supreme Court deliberations on its fate, leaving the impression that the law’s insurance requirement is more onerous than it actually is.
During the recent oral arguments some of the justices and the lawyers appearing before them seemed to be under the impression that the law does not allow most consumers to buy low-cost, stripped-down insurance to satisfy its controversial coverage requirement.
In fact, the law provides for a cheaper “bronze” plan that is broadly similar to today’s so-called catastrophic coverage policies for individuals, several insurance experts said.
“I think there is confusion,” said Paul Keckley, health research chief for Deloitte, a major benefits consultant. “I found myself wondering how much they understood the Affordable Care Act.”
This isn’t some random tangent. As Andrew Sprung explained very well over the weekend, the justices were told consumers over 30 are prohibited from purchasing purely catastrophic coverage, which isn’t true, and plaintiff’s counsel “was exaggerating the extent to which the law requires Americans to buy more coverage than they might conceivably individually need, or think they need.”
Given that Alito, Roberts, and Scalia found all of this critically important, it matters that the discussion was built on a foundation of confusion, and the “mandate” conservative justices found offensive isn’t nearly as burdensome in reality as they’ve been led to believe.
And as long as we’re talking about this, let’s also note that conservative legal scholar Henry Paul Monaghan, a Robert Bork ally, argues today that “Obamacare” is obviously constitutional. It led Jonathan Cohn to explain:
If you’re keeping score, that’s five very prominent, very well-respected conservatives who have argued that the Affordable Care Act is constitutional. The other four are Charles Fried, Laurence Silberman, Jeffrey Sutton, and J. Harvie Wilkinson. Fried, a Harvard Law School professor, was solicitor general during the Reagan Administration. Wilkinson, a sitting federal judge, was on George W. Bush’s short list of potential nominees to the Court. […]
If five justices want to strike down the individual mandate, they can. But to do so honestly, they would have to admit that they were rejecting precedent and drawing new lines around federal power.
I’m pretty sure that’s what conservatives used to describe as “judicial activism.”