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Will politics or precedent decide the Affordable Care Act?

Starting today and for the next two days, we will be witness to, sort of, an extraordinary six hours of argument before the U.S. Supreme Court over the constitutionality of the Affordable Care Act, often derisively referred to as Obamacare.

The overwhelming majority of Americans, if they choose to listen to the audiotapes of the arguments after they’re released each day, will probably not understand much of what was said. Perhaps the only things more esoteric than U.S. Supreme Court opinions are constitutional lawyers’ arguments about them.

But if you want to understand the United States, you have to understand the Supreme Court. It is where our bickering either ends or, in some cases, begins, such as Roe v. Wade.

We tend to think of Supreme Court Justices as sober, sedate and reasonable eggheads who consider the law and only the law when making decisions. But that thinking denies them their humanity. They can be just as emotional, political and irrational as the rest of us. That’s why there are nine of them, so that no one judge’s particular biases or whims determines the law for all of us.

That doesn’t mean, though, that the court is not a reflection of our greater society. When America was racist, the court was racist. When America was afraid of Germans and Japanese, the court was afraid of Germans and Japanese, even if they happened to be Americans.

Sometimes the court bucks popular sentiment, especially in the 1950s and 1960s when a series of courts gave considerable weight to the ideals of basic human dignity that underpin many of the amendments to the Constitution.

Those courts upheld the rights of workers to earn a fair wage and be safe in their workplaces, ended racial and sexual discrimination, required the fair treatment of criminal suspects and the humane treatment of prisoners and allowed for government-paid health care for the poor and elderly.

Beginning in the 1980s, the conservative movement began attempting to undo many of those liberal decisions by appointing a more conservative court.

The nation is now fairly evenly divided between those who think we’re all in this together and those who think we’re all in this for ourselves, that selfishness equals liberty.

And so many people, more than 50 percent according to recent polls, believe the Affordable Care Act is unconstitutional because a key tenet of the act requires Americans who don’t have insurance to buy some or pay a penalty. They argue the Constitution does not empower the Congress to force Americans to buy anything.

But the Congress is empowered under the Commerce Clause to regulate health care nationally as an economic activity because health care crosses state lines. People who don’t buy health insurance still receive health care. Moreover, they’re not compelled to buy insurance. They can choose instead to pay a penalty, or tax. The law is Constitutional.

Will the court find it so? The conservative members of the court were not appointed to uphold liberalism so we’ll find out sometime in June whether reason or politics carried the day.

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