PPACA and the Supposed Politicization of the Supreme Court: Carping as Campaign Fodder

Leavitt Partners — Fri, 01 Jun 2012 16:24:29 +0000

Following the administration’s “train wreck” performance at oral arguments, President Obama preemptively chastised the Supreme Court, remarking that it would be an “unprecedented, extraordinary” step of judicial activism for an “unelected group of people” to overturn, in whole or in part, the Patient Protection and Affordable Care Act (PPACA). By so stating, he was not trying to bully the Court, as some have posited, nor did his comments stem from a lack of constitutional intelligence, as others have claimed (after all, judicial review is at least superficially understood by every Civics 101 student and, certainly, former constitutional law lecturers). Instead, President Obama was staking out the Democratic Party’s response to a potentially (indeed, likely) unfavorable decision—a response that exploits the “Supreme” ignorance of most voters, i.e., their inability to distinguish between judicial impropriety and dissonant, though legally defensible, rulings. Democrats’ worst-case-scenario, election-season refrain will be: “An activist conservative Court, not the Constitution, is responsible for PPACA’s demise.”

Republicans will be no less swift to raise the judicial-activism or justices-as-politicians alarm, in the event that the Court upholds the law in toto. As the argument goes (and will go), “Partisanship is four Democratic-appointed justices giving lock-step support to a law passed by a Democratic Congress and a Democratic president.”

In truth, the pejorative use of “judicial activism”—i.e., decisions based on a judge’s own beliefs and (political) preferences, rather than on the law as written—has been mostly a ploy of the political right. For decades, the term has been used to manifest contempt for liberal justices’ promotion of a “living Constitution,” on display in decisions like Roe v. Wade, and for Democratic presidents who’ve prioritized, in nominating would-be justices, traits like “empathy” and “feeling.” The left’s recent embrace of the term, which has coincided, unsurprisingly, with a period of increasing conservatism at the Court, has merely confirmed what has been painfully obvious to so many for so long: “[J]udicial activism has become a codeword for judges . . . you don’t agree with.”

For their part, the justices have decried the “activist” label as “insult[ing],” “conclusory,” and “grossly distorted.” Those with intimate knowledge of Supreme Court inner-workings, too, vigorously maintain that the Court’s professed devotion to impartiality is more than political expediency or calculated self-promotion. In fact, today’s justices are more disengaged from public (and political) life than any of their high-court predecessors. And despite its strongly conservative bent, “[t]he Roberts court is finding laws unconstitutional and reversing precedent”—the hallmarks of judicial activism—“no more often than earlier courts.”

Perception is reality, though. The voting public, notwithstanding its historical confidence in the Supreme Court, is impressionable. And in an election as closely contested as this one will be, every vote counts. So, while “the supposed danger of judiciary encroachments on the legislative authority . . . is in reality a phantom,” perceived politicization of the Court may well mean the difference between winning and losing.

Parker Larson is an Analyst at Leavitt Partners. As an analyst, Mr. Larson conducts legal research and analysis in support of Leavitt Partners’ knowledge and thesis development, and prepares or contributes to many of the firm’s product-driven written materials.

How the upcoming Supreme Court decision and the 2012 elections affect the future of American health care

Leavitt Partners — Thu, 31 May 2012 16:54:05 +0000

Health Reform Bracketology Reveals Likely Implications

In anticipation of the forthcoming Supreme Court decision on the federal health reform law, Leavitt Partners has analyzed how various rulings by the court, when combined with 2012 election results for the White House and Congress, may impact the future of American health care. The analysis draws upon the significant experience and expertise of the Leavitt Partners FuturePanel™, an authoritative group of health care thought leaders who have shaped and continue to guide the American health care system.

The analysis has been distilled into a simple user interface called Health Reform Bracketology. Leavitt Partners’ principals are available to explain the analysis and comment on implications.

How does Health Reform Bracketology work?

Much like the brackets used in sporting competitions, Health Reform Bracketology prompts users to select whether the individual mandate and other aspects of the federal health reform law will be upheld or overturned.

Next, the user is given the option to select whether a Democrat or Republican will occupy the White House and which political party will secure a majority in Congress.

Once these selections are made, the tool shares an applied analysis by Leavitt Partners of the implications to Medicaid, Medicare, insurance reform, premium subsidies, health insurance exchanges, delivery reform and future legislative action.

The analysis reveals the likely future of health care based on user-selected outcomes of the Court decision and the elections.

Free Download

Download the interactive Health Reform Bracketology report here (3.3kb PDF).