The
Supreme Court appears poised to sound the death knell
for the Patient Protection and Affordable Care Act (PPACA). This landmark piece of legislation is now in the hands of five conservative Justices who seem
reluctant to extend the full protections of our
Constitution to causes other than corporate power and empire. In other words, the survival of this Act looks increasingly unlikely.
Many
of the Court's conservative Justices, most notably Antonin Scalia, are continually
praised by people all along the political spectrum for their brilliance.
But brilliance doesn't produce the radical decisions of this Court.
Rulings like Citizens United, and
potentially the striking down of health care reform, are the products of deception, partisanship, and
intellectual dishonesty. Whether or not they form the majority opinion, the views of Justices Roberts,
Kennedy, Scalia, Alito, and Thomas will undoubtedly influence future
litigation and scholarship for decades to come. These Justices inject ideas
that, with the right makeup of the Court, become the law of the land, and allow miscarriages of justice against the powerless to triumph. These Justices routinely pervert the rule
of law under the pretense of impartial adjudication.
Such
actions by the Court are by no means unprecedented. During the
Lochner era (1897-1936),
the Court continually struck down regulations in its effort to
promote unfettered capitalism. The case that defined the era, Lochner
v. New York, was spurred by the
1895 Bakeshop Act, which was passed unanimously by the New York
legislature. The act limited bakers' hours to 10 per day and 60 per
week, and mandated improved working conditions in bakeries. The law
was passed in response to the fact that most bakers worked more than
100 hours per week in unventilated bakeries, and suffered from severe
respiratory and skin ailments as a result.
The
Court, however, held that such regulations were violations of
substantive due process. It held that employers had the fundamental right of
contract under the 14th
Amendment, and regulations like the Bakeshop Act ran afoul of that right. Writing
for the majority, Justice Rufus Peckham stated,
There
is no reasonable ground for interfering with the liberty of person or
the right of free contract by determining the hours of labor in the
occupation of a baker. There is no contention that bakers as a class
are not equal in intelligence and capacity to men in other trades or
manual occupations, or that they are able to assert their rights and
care for themselves without the protecting arm of the State,
interfering with their independence of judgment and of action. They
are in no sense wards of the State.
In
his dissent, Justice Oliver Wendell Holmes, Jr. lambasted the
majority for basing its decision “upon an economic theory which a
large part of the country does not entertain." He further
stated,
Some
of these laws embody convictions or prejudices which judges are
likely to share. Some may not. But a constitution is not intended to
embody a particular economic theory, whether of paternalism and the
organic relation of the citizen to the State or of laissez faire.”
Lochner
was not passed in a vacuum. The Court struck down over 300 labor and
employment laws in the late 19th
Century as unconstitutional under the guise of freedom of contract. Much like the current Court,
the Supreme Court during the Lochner era invoked
a method of constitutional interpretation that sought to expand the
power of business interests, disempower workers, and restrict the
government's ability to regulate business activities.
The current Supreme Court's decisions follow a similar theme to that of the
Court during the Lochner era. It
seeks to expand the power differential between the classes. The
current Court interprets the Constitution narrowly when it reviews
legislation or litigation that attempts to curtail the interests of the
powerful or promote the interests of the powerless. Yet, as we saw in
Citizens United, it
has no qualms about deciding cases in a manner that can
simultaneously curtail
the rights of the lower classes while expanding those of the most
powerful.
How did the Lochner Court justify such naked transfers of power to the dominant class? Liberty, it claimed, prevented regulations that protected vulnerable workers from the exploitation of employers. And the Justices who will decide that the PPACA is unconstitutional will most certainly invoke a similar interpretation of liberty to justify the denial of health care to millions. We are, in many ways, witnessing a return to the Lochner era.
History
has shown us by now that the Constitution simply isn't
tailored to promote justice. But what it can do, quite well in fact,
is prevent injustice.
By striking down the health care law, the Court will continue to deny
us even this small consolation. It will solidify
the power differential in America between the haves and have-nots,
and, in the process, send a clear message: your rights are dependent upon power. Justice is reserved for the few, and certainly not for the lower classes.
