Health Care and the Hollow Hope


Conservative partisans and activists should have learned a blunt lesson about political power and how it’s exercised in the United States in light of the Supreme Court’s ruling on “Obamacare” this last week.  Many conservatives hoped the court would take an active role in striking down legislation they thought was immoral and unconstitutional.  Those hopes were dashed by a Supreme Court, which has done what it typically does in political disputes – defer to the president and congress.

Judicial scholars have long understood that the courts tend to defer to other branches of the federal government in times of intense political conflict.  Judges – although hardly “objective” in their rulings – don’t like to be seen as blatantly taking sides in blatant partisan battles such as the recent fight over whether it is constitutional for the government to mandate that individuals purchase private health insurance under threat of penalty (or threat of “tax” as the liberal judges and Roberts deemed the $695 annual fine imposed on those not purchasing health insurance).  It’s not that judges are free from partisan beliefs (they are as biased as anyone), or that they don’t act on those beliefs (they do)’ it’s just that their judicial “prestige” rests upon projecting themselves as above partisan bickering – especially on legislation as high profile as “Obamacare.”  At times the courts blunder into blatantly partisan political rulings (Bush v. Gore 2000 showed this) but they do so at their own peril.  This danger appears to have been openly acknowledged by Chief Supreme Court Justice John Roberts in recent days.

It has long been understood by many students of the judiciary that the courts lack many of the basic powers needed to play an active or independent role in governing when it comes to partisan conflicts.  This point was made abundantly clear in Gerald Rosenberg’s classic study, The Hollow Hope, which demonstrated that courts are ineffective in (or perhaps incapable of) producing social change.  Rosenberg argued that “U.S. courts can almost never be effective producers of significant social reform.  At best, they can second the social reform acts of the other branches of government.”  Rosenberg made this claim due to a number of considerations: 1. Courts lack the mandate to actively create policy; rather they are expected to rule in a reactive way on the policies already passed by congress and the president.  This reality makes it difficult for the court to get out in front in terms of setting the political agenda on things like health care reform.  2. Even if the court wanted to set the agenda on partisan issues, it lacks an enforcement mechanism for translating this wish into a reality.  Rosenberg marshals quite a bit of evidence to demonstrate his point.  In an exhaustive analysis of the cases of the history surrounding the Supreme Court cases of Brown v. Board of Education (1954) and Roe v. Wade (1973), he demonstrates that it was social movements, rather than the court, that played the major role in mobilizing the public in support of equal rights and women’s rights.  Rather than “creating” rights for women and minorities on their own, the court rulings in question were instead a response to the efforts of these social movements, and subsequent efforts by Congress to expand the rights of disadvantaged social groups.  The implication is clear: individuals should expect social change to originate in their own sustained and vigilant actions to force a change in the status quo, rather than relying on the courts (whose members, realistically, are political elites and members of the established political order).

In other words, the courts can rule on many issues, but they have no way to actually force the president and congress to follow their rulings, especially judges choose to anger Congress and the president by defying legislation with which they disagree.  The prospect that members of Congress and the Executive will ignore disagreeable judicial rulings reveals the fundamental weakness of the courts, as they reside in the weakest position in the political pecking order.  If the president has the power to enforce (or “Executive”) the law via the federal bureaucracy, and the Congress retains the power of the purse in terms of authorizing legislation and spending, what mechanism do the courts having for imposing their will outside of hoping that legislators and the president will listen?  This basic limit of the courts has been recognized as far back as the writings of Alexander Hamilton, as seen in the Federalist papers.

The lack of enforcement powers of the courts clearly did not escape Supreme Court Chief Justice John Roberts, as he concurred with the four liberal judges on the court that “Obamacare” was indeed “constitutional.”  In his written opinion, Roberts argued in favor of a “permissive reading” of the Constitution so as to allow for the mandate and its $695 penalty under the assumption that this penalty essentially represented a tax on citizens, and that such a tax was permissible under the “general welfare” and “taxation” clause of the Constitution.  The taxation and general welfare clause specifically states that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.”  In other words, the mandate represents a constitutionally permissible effort by Congress to tax Americans and even penalize them in order to promote the “general welfare” (expanding health care coverage).   Robert’s ruling represents a careful political calculus at play by judges who retain very real concerns about how far their authority extends over the other branches of the federal government.  Displaying this calculus, Roberts discussed “our [the court’s] deference in matters of policy” to the other branches of the federal government, and “our respect for Congress’s policy judgments.”  As Roberts wrote:

“Our permissive reading of these [taxation] powers [of the federal government to impose a health care mandate and penalty] is explained in part by a general reticence to invalidate the acts of the nation’s elected leaders.  ‘Proper respect for a co-ordinate branch of the government’ requires that we strike down an Act of Congress only if the ‘lack of constitutional authority to pass [the] act in question is clearly demonstrated’ [Roberts cited the case of United States v. Harris (1883) to make this point].  Members of this court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.  Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.  It is not our job to protect the people from the consequences of their political choices.”

Roberts’ liberal ruling allows for a controversial mandate that goes beyond simply regulating economic activity, but allows the punishment of inactivity (not purchasing health insurance).  Many on the left and right have understandably challenged this provision of the bill, since the federal government has never before compelled its citizens to purchase a product under threat of fine.  Many progressives instead advocate a “public option,” in which the government would simply pay the health insurance of the uninsured, rather than fining citizens for not granting government-mandated subsidies for the private health care industry.  While Roberts technically ruled that punishing inactivity (not buying insurance) is legally impermissible under the “commerce” powers granted the federal government in the Constitution, this pronouncement is largely belied by his support for punishing inactivity under the taxation powers granted in the Constitution.

While conservatives will no doubt be angry at the Chief Justice for his ruling in this case, their objections are representative of a large-scale ignorance as to the limits that are realistically imposed on the courts by the other branches of government.  Roberts’ statement should be taken as an explicit admission of the limited powers of the federal courts.  The reality of the matter is that the courts will threaten their own ability to authoritatively interpret the Constitution if they start to mix it up with the president and congress over highly charged political issues.  This lesson should have become abundantly clear following the Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006) court cases, where the Supreme Court declared unconstitutional the Bush administration’s indefinite detention of “enemy combatants,” and invalidated the government’s use of military trials (rather than civilian trials) against alleged terrorists.  In those cases, the presidents (both Bush and Obama) essentially ignored the Supreme Court’s rulings, continuing with, and even escalating, the illegal detainment of alleged terrorists and prosecuting (some of them) through military trials.  In these cases the Constitution’s legal protections for the detained was indisputably clear, as the 5th Amendment guarantees that “no person” (rather than no citizen) shall be denied basic due process under the law.  In light of a lack of an enforcement mechanism for compelling the president to respect the court’s decisions (and in light of the unwillingness of Congress to impeach either president for their ignoring of the rulings), the Supreme Court was left with no means of compelling the president or Congress to respect the law.

The blatant contempt for the court’s authority seen through the “war on terror” is hardly an isolated incident.  Congressional-judicial studies have found that Congress tends to overrule Supreme Court decisions that it disagrees with about 70 percent of the time.  Furthermore, Congress openly considers revising at least one in every five court rulings via the legislative process, despite the fact that the courts are supposed to have final say over the constitutionality of federal legislation and the actions of members of congress and the executive.  Clearly, Supreme Court judges are aware of the danger of becoming irrelevant, should they become too independent of the governing regime in control of Congress and the White House.  Supreme Court justices have been shown to openly consider in their writings the preferences of members of Congress and the Executive in one half of all cases deliberated (see Roberts statement above for more on this).  Furthermore, deference to the president in political conflicts is constant.  Studies suggest that the president (and more directly his Solicitor General, who represents the president in court) prevail in about two-thirds of all court cases that they litigate in federal court.  In the few cases that they lose and choose to appeal, the president and Solicitor General win an overwhelming 83 percent of cases.  These success rates are far and above what one would expect if the courts were not consciously deferring to the president.

Critics might challenge the above arguments by arguing that the Supreme Court has been very active in cases like Citizens United (2010) in expanding the power of corporate and business interests.  This is undeniably true, but not relevant to my point.  In such cases where the court commits to expanding corporate power, it has actually aligned itself with, rather than against a bi-partisan governing regime that has embraced the growing power of corporations and business in the electoral process.   Congressional and presidential candidates are more reliant on corporate campaign contributions and spending for issue ads today than at any other point in American history.  The court’s efforts to solidify such powers, then, should not be seen as a deviation from the status quo, but an intensification of it.

The Supreme Court’s health care ruling should serve as a wakeup call for activists or political figures on the left or right who are holding out hope that the courts can actively produce positive social change.  As the Chief Justice of the Supreme Court, John Roberts is no fool.  He understands (and openly acknowledges) the very real limits of the courts in promoting social change.  Those calling for dramatic changes in the status quo in relation to health care (whether in terms of overturning the mandate or introducing a public option or even universal health care) should stop looking to the courts to be their savior.  Activists’ attention would be better spent on building social movements to promote change and pressure Congress and the president to pass new reforms, rather than relying on the unlikely, and ultimately hollow hope of the courts to promote change.

Anthony DiMaggio is the author of numerous books, including most recently The Rise of the Tea Party,  and  other works such as Crashing the Tea Party (2011); When Media Goes to War (2010); and Mass Media, Mass Propaganda (2008).  He has taught American politics and International Relations in Political Science at a number of colleges and universities, and can be reached at: adimag2@uic.edu


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