In Healthcare Case, the Supreme Court Is Risking Its Legitimacy

A nation of 300 million cannot tolerate five men making a huge medical decision involving life and death for the population.

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April first has not rinsed the Supreme Court out of my hair.

Disturbing my peace of mind: the arrogance of Antonin "Nino" Scalia and his four fellow "conservatives" (almost too good a name for what they are if they dismantle President Obama's healthcare law). Piquing my patience: the journalistic myopia leading up to this moment.

If five unelected men dare to do that, that would be a radical affront to the constitutional authority of the president and the Congress, who both represent the voices of the people. They call the three branches of government a balance of power. Very nice. But in practice, considering the Supreme Court led by Chief Justice John Roberts, all bets are off.

[See a collection of political cartoons on healthcare.]

Hearing their voices last week during the case's oral arguments awakened me—and many of us—from a slumber of apathy about the high court. In general, the justices are a given, a group of nine who rule from a beautiful marble building. We the people can't do anything about the Republican majority of five—even if we believe Clarence Thomas is a scoundrel who has no place in deciding other people's fates. They are removed in their black robes, resistant to cameras capturing their proceedings, and altogether mysterious to the public. You can't even walk up the famous front steps anymore. The cloistered "brethren" like things that way, literally above it all.

Now it's clear as an April morning: They are unacceptably apart from the rest of us. A nation of 300 million cannot tolerate five men (appointed by George W. Bush, his father, and Ronald Reagan) making a huge medical decision involving life and death for the population. The political class and the press should start letting it be known the court had better not rule against a complex legislative achievement on its second try since Bill Clinton's presidency. Doctors, nurses, citizen groups, write letters and go stage a demonstration. Let the court hear your voices in their marble manor, just as we've heard theirs, insolently comparing health insurance to broccoli—thanks for that, Nino.

In other words, my fellow Americans, don't just wait for a decision to be handed down from on high. Healthcare reform is surely at stake with this momentous decision, but so is the popular legitimacy of this court.

[Read the U.S. News debate: Should the Supreme Court Overturn Obama's Healthcare Law?]

Far from being fair-minded and deliberative, we are faced with a court characterized by five partisans—and I include Anthony Kennedy, seen as the swing vote. He has enjoyed glowing treatment from the Supreme Court cadre of journalists who have used him as a plot point for years. A Washington institution, he's not the man in the middle now anymore than he was when he voted for George W. Bush in the Bush v. Gore debacle in 2000, giving new meaning to democracy's "one man, one vote. " That wasn't even 12 years ago, people!

In the scene-setters for the case, I read too many articles in The New York Times and Slate—and heard one too many NPR stories—asserting Kennedy would be a "reasonable" or "moderate" key player in upholding the healthcare reform mandate for his legacy. In fact, one law correspondent said, "everybody" in the legal journalism community thought upholding "Obamacare" was a done deal—until the actual arguments started.

In covering a rarefied realm, journalists jointly create a narrative for a cast of characters—and perhaps get too close to their sources, as those sources aren't going anywhere for a long time. In Congress across First Street, fresh faces and new blood are circulating every two years. The press galleries there resemble public school, while the press room in the court feels like a posh private school.

As the poet said, April is the cruelest month—at least until June crashes in.

  • Photo Gallery: Supreme Court Hears Healthcare Reform Arguments
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