On Health Care Reform, The Court, And Power

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 14^th 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 19^th 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.