Thursday, April 12, 2012

Profiling the Supremes

Politics & Personalities on Display in Arguments Over ObamaCare
by ELAINE CASSEL


As a lawyer and teacher of psychology, I have more than a passing interest in the intersection of behavior and the law. Three days of Supreme Court hearings on the Affordable Care Act (ACA) were an intellectual feast for me. The first time I listened to the audio tapes, the day of their release, I was riveted by the legal arguments, which ran the gamut from profound and compelling, to specious and ridiculous. On second listening, more leisurely and over the weekend via C-Span Radio, I was struck by how personality traits were conveyed in the justices’ comments and questioning.

This was particularly apparent in the arguments in the afternoon of Day 3, when the state of Florida argued that the required Medicaid expansion was so coercive that it had to be stricken (unless, of course, the court threw out the entire law, in which case the argument is moot). Little attention has been paid to this afternoon of argument, perhaps because the issue was not as sexy as the individual mandate and severability. In short, the law requires the states to significantly expand access to Medicaid. The federal government will pay 90% of the cost. If the states don’t expand access, the Secretary of Health and Human Services, who administers Medicaid, may withdraw funds from the states for services not included in the ACA.

At the outset of the argument, Justices Kagan and Sotomoyer’s empathy and compassion for “poor people,” shown through. Why would the states not want to accept a gift from the federal government that would be good for their citizens, they argued? Because, attorneys for Florida argued, it amounted to coercion.

When lawyers talk about coercion, the analogy of the proverbial gun to the head comes into play. Legal coercion is hard to prove unless, the old saw goes, you can prove that someone literally held a gun to your head and made you take some action you would not otherwise have undertaken. The gun to the head argument was exploited by Chief Justice Roberts. Following his lead, Justices Scalia and Alito took it to such extreme hypothetical conclusions, spinning out so many absurd hypotheticals, that the Chief Justice granted Solicitor General Verrilli, arguing for the Obama administration, another fifteen minutes.

Justice Breyer displayed his measured and even temperament by positing that the Secretary of Health and Human Services would be reasonable and judicious in her implementation of the requirements. Breyer pointed out that agencies are required to administer laws fairly. Justice Alito seems personally
offended that the government would intrude upon states in such a way as to require an expansion that they might not want or which may have strings so offensive that they may be forced, on principle, to decline to adopt the measures and, under the law, risk losing funds other than those related to the ACC.

Justice Scalia poked his usual fun as the whole idea of providing health care to those in need (earlier in the proceedings he suggested that the government could, if he wanted to, change laws requiring hospitals to provide emergency services regardless of insurance status). Justice Thomas sat stone silent, reflecting his aloofness—not for him the trenches of debate and discourse. To this listener, Justices Kennedy and Ginsberg showed no particular personality traits as they framed their arguments in legal, not political, terms.

But the Chief Justice, who, for some reason, has always invoked in me a sense that he would be a tough man to work around or live with, did not disappoint. His hypotheticals and arguments projected a bullying, intimidating federal government that would hold a “gun to the head” of the states, and demand full compliance or withdrawal of all Medicaid support. In a revealing statement he said, “I mean, if I had the authority and I was in that position, I would use it all the time. You might — you want some little change made? Well, guess what; I can take away all your money if you don’t make it. I win. Every time.”

Whoa! Stop tape! Was the Chief Justice projecting his own authoritarianism? As in, “If I had the power, I wouldn’t be reasonable or judicious. I would exert power for power’s sake”? So much for being the umpire calling “balls and strikes,” as he so famously said during his nomination hearings.

Roberts went on to project an authoritarian and arbitrary view of the federal government. Surely the HHS secretary would do as he would do. “So, why shouldn’t we be concerned about the extent of
authority that the government is exercising, simply because they could do something less? We have to analyze the case on the assumption that that power will be exercised, don’t we?”

Justices Kagan and Breyer piped up and pointed out that there was no evidence that the government has ever acted with vengeance to “punish” noncompliance with a Medicaid requirement, but Roberts and Scalia headed headed them off at the pass.

Having projected the government as a bully, Roberts casts the states in the victim role. “Of course no State is going say, okay, go ahead, make my day, take it away. They’re — they’re going to give in.” Of course. Roberts is nothing if not certain of his conclusion. Justice Roberts pressed Verrilli to name him one case decision that proved the government all the time. Verrilli couldn’t name a case precedent, so the absence of evidence became evidence. Said Roberts, “And you cannot -you cannot represent that the Secretary has never said: And if you don’t do it, we are going to take away all the funds.” Roberts brings back the gun to the head analogy, suggesting the no one has been shot with the (government’s) gun because the victim (state) has “given up” its wallet. It had no choice.

At this point, you may be thinking that Roberts will condemn the bullying gun-to-the head government, but no! He surprises us! “I’m not saying there’s anything wrong with it.” Then mocking Verrill, who tries to stop the runaway metaphor of government as gun-toting bully butts in, “It’s not coercion, Mr. Chief Justice.” Oh, really, Roberts said? “To say I’m going to take away all your funds, no matter how minor the infringement?” No matter that there is not a shred of evidence that the federal government ever has or ever will cut off a state from Medicaid funds for “minor infringement” of its rules, the government’s policy being to provide services to those who need them most.

But Roberts is not done yet. His assigns a purpose for the bullying government of his hypothetical. The federal government, having given the Medicaid funds which the state and its citizens got used to and, presumably, liked, may decide to lower its “contribution to Medicaid and leave it up to the states because we {the federal government} want the people to be mad at the States when they have to have all these budget cuts to keep it up, and not at the federal government.”Not surprising, Verrilli has no effective counter to this proposition that the federal government would give something, and take it away for the purpose of (“because”) turning the American people against the state governments.

So here is Roberts’ explanation for the expanded Medicaid provision: In order to turn the people against their states, tell the states they have to put more people on the Medicaid rolls and pay 90 % of the cost. The states may not want to do it, well, just because. But the people will probably like it. Then just when the people start to like it, the federal government tells the states it has no more money to fund the expansion. The people will turn against the states or, at least, be “mad” at them. Roberts starts short of giving any plausible motive for why the federal government would want to pit citizens against their states.

With recent polls indicating that a majority of Americans expect the Court to rule along partisan lines, the Court’s reputation is already compromised. It began, to be fair, before Roberts’ rule, with Bush v. Gore. It continued, under his watch, with Citizens United, which struck down decades of campaign finance laws designed to promote fair elections and true representative government. Those who suggest that Roberts is concerned for the reputation of the court and for his own legacy and, if believes the individual mandate is not constitutional, would refrain from supporting a decision that would strike the entire law, should pay attention to the personality behind the robe. Florida v. Department of Health and Human Services may well be the next blockbuster ruling from justices who vote their politics and their personalities.