5 Things I Learned from the Supreme Court Ruling

By Bill Coffin

Commentary July 03, 2012 at 08:32 AM

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Last Thursday, I returned home from a week of strategic meetings in our Denver office, in a state somewhere between that feeling kids get when they know they have presents beneath the Christmas tree but have not yet gotten the parental go-ahead to tear into them, and the nervousness that typically arises before the first day of school, or in the moments right before a big race starts. Yep, I'm talking about the Supreme Court decision on whether or not the Patient Protection and Affordable Care Act is constitutional.

The verdict was set to drop at 10:00 am (or 8:00 am Denver time), and my flight home was set to board at 8:07. I feverishly monitored the SCOTUS blog on my phone for the latest, knowing full well that my news team was already fired up and ready to tackle the news right away.

(In case, you missed it, you can check out our coverage here, here and here. We offered a lot more depth than most mainstream outlets did, if I may permit myself to brag.)

As the verdict pushed back to 10:15, I suddenly found myself dangerously close to re-enacting Alec Baldwin's infamous Words with Friends moment, especially since I am firmly of the thought that electronic devices, when their connectivity is shut off, have no meaningful impact on planes at all. (This, of course, is the subject for a different editorial altogether.) Unwilling to turn off my phone until I had a verdict I could rely on, I watched and waited, secretly grateful that our plane had minor mechanical problems that kept us on the tarmac for an additional 45 minutes. By the time we really had to turn off our phones, the news was out and the drama was, for the most part, over. PPACA had been upheld 5-4, with Justice Roberts supposedly reversing himself to uphold the law rather than see it entirely dismantled. It is a moment many friends who are more conservative than I am regard as a kind of "Et tu, Brute?" moment.

On the flight home, I thought about the decision and what it meant. We have been covering this intensely for many months now, and in one way, the story is now over. (Kind of. More on that later.) The next acts are all about implementing things that a bunch of major health insurers said they would abide by even if PPACA had been overturned. And while the law itself remains a vague mess of sometimes conflicting regulations and restrictions, it is what we all are left to live with.

So what has this whole experience taught me so far about the state of our health care system, the health insurance industry, the role of the federal government, and the American people? Read on, dear reader. Read on.

Next page: PPACA? Meh.

#1: People don't care.
As I waited for my plane to board, hunched over my phone like it was a tank of oxygen and I was under water, I periodically looked up to see if anybody else was as fixated on the impending news as I was. The fate of PPACA would be determined in the next few minutes! Wasn't everybody on tenterhooks about it? They weren't.

Even the Fox News on the terminal TV wasn't getting a lot of attention. Folks mainly wanted to drink their coffee and focus on their Sudoku puzzle or the trashy novel they had for the flight. (More than a few moms in the crowd were reading Fifty Shades of Grey rather than anything news-related. I know it's summer, but come on, people!)

On the plane itself, every single television screen on the seatbacks was tuned to CNBC and their Supreme Court coverage. Again, folks were largely ignoring it. When the recent college grad next to me asked what I did for a living, I told him I was a business journalist who covered health insurance, and this was the biggest story of the year, unfolding by the moment. He appreciated the import of it, and he had his opinions about health care, but really, he couldn't be bothered too much by it. Like most folks his age, he was glad he could enjoy his parent's insurance for a few more years while he got his career going, but otherwise, it was all a huge collection of things he really did not understand, nor could be troubled to learn. He was a nice guy, but his willful ignorance of a topic that a) so clearly affected him and b) was a litmus of our current political environment was a bit depressing.

The guy next to me on the plane wasn't alone. I asked a number of people as I went through the day what they thought about the ruling. More often than not, they didn't have an opinion. And not in the "avoiding-speaking-to-a-journalist" sense, but in the "hmm-let-me-think-about-that…nope-I-really-have-no-opinion" sense. A day later, when I asked some high schoolers what they thought of it all, none of them had a clue, except for one who was instantly and roundly mocked by his friends for being a nerd. Nerd or not, at least that kid will know if he's got healthcare when he enters the world. The whole thing reminded me of how, at election time, we see comparisons to how readily people call in to vote on shows like American Idol versus how readily people do their civic duty and vote.

Voting in American Idol is easy; all you have to do is generate a gut reaction to music. Voting on issues is hard. You have to care, and you have to be at least a little bit informed. And frankly, with so much news media reflecting the divided political camps of our country these days, I can forgive those who eschew watching the news out of an effort to avoid political squabbling. But honestly, most of it is simply people who would rather not do the intellectual heavy lifting of keeping tabs on how their government operates. And while I totally appreciate the concerns of those who insist that a law like PPACA is the first step on a slippery slope toward too much government in our lives, a much bigger step is a populace that doesn't care about it one way or the other.

Next page: People are misinformed

#2: People are misinformed (Part I).
I spent a good portion of that night online talking and debating with various friends, colleagues, acquaintances and friends of friends over what had happened and what it all really meant. One of the things I decided early on was that the world's got enough political blather in it and folks don't really care if I supported PPACA being upheld or overturned. What I did dedicate myself to, however, was addressing clear misconceptions people had about the law and what it meant to do. And on this front, there was (and still is) more than enough work to go around.

One of the most pernicious misconceptions I came up against was the notion that there was absolutely no precedent for this in American politics, and that we had, as a nation, entered some strange and undiscovered country where Congress can order us to eat broccoli if it really wanted to. I understand where such sentiment comes from. Pew Research recently published a poll showing that 59% of Americans were worried about the federal government's role in health care. What that tells me is that even if you support PPACA and the individual mandate, you're still likely to be afraid that the government will screw it all up somehow. That's probably a good stance to take.

That aside, though, one thing I tried to tell people that it's not like we have not been here before. If you want to go all the way back to the beginning, George Washington signed into law two forced-buy bills. One of them required farmers to purchase rifles for their own protection. The other required maritime sailors to buy some health insurance, mainly for the same reason that Congress is requiring it now: to make people pay something into a system which they inevitably draw from. When I could, I directed them to Allison Bell's excellent article on the history not just of PPACA, but of health care reforms since antiquity. It is a great piece of content, if only to provide everybody with some much-needed context for this debate. There is plenty in PPACA to oppose with all of one's heart. Opposing it for reasons based on a lack of information or an adherence to information that is factually incorrect, however, usually won't help one's cause.

Lest this seem like a dig at those who oppose PPACA, let me say that I saw an equal degree of ignorance and misinformation on both sides of the aisle, politically. The bottom line here is simple: educate thyself. Now, reading PPACA itself is an extended exercise in self-torture (believe me, I have tried), but it's not quite so bad to read the Justices' decision and the fairly extensive dissent to it. If you can't be bothered to figure out the law itself, then at least read how the Court ruled.

Next page: The fight isn't over

#3: The fight isn't over.
It took mere minutes for the ruling to come down before I got my first press release from a grass roots group that vowed to launch yet another repeal effort of PPACA. Similarly, later that day, I saw news items from politicians who suggested that the states simply ignore the ruling and ignore PPACA altogether. That struck me as an interesting position to take; when you live in a country founded on revolution and breaking the law (the Founding Fathers were criminals and traitors until they won the war, after all), you can't take a suggestion like wholesale defiance of the government lightly. Nor can you just decry it as nonsense or sedition. It is, whether we like it or not, an unspoken part of our system, that notion that there is a range in which we are willing, as a people, to talk things through and vote on them. And then there is a range where we are willing to just do what we want anyway and the government largely looks the other way, unwilling to press the issue because to do so would create more problems than it fixes. (Music piracy and copyright law is a good example.) And then there is a range where we are willing to defy the government in ways that the government feels are impossible to ignore and call for action.

A lone senator calling for states to forget that PPACA was upheld sort of falls in the second category…until that hard-to-define point where it doesn't, and then we have a serious issue on our hands. Is that what we are really headed for? I doubt it. Lest we forget, there were a lot of people who, following the ruling, vowed in anger that they were leaving for Canada, a collective tantrum that drew plenty of gloating chortles from the left, where it was pointed out that leaving the United States for Canada to protest the passage of universal health care is a bit like leaving New Jersey for Arizona because it's too hot in the summertime.

Perhaps the most realistic sign that this political and legal struggle is not over, however, came from a friend of mine who wondered aloud what kind of lawsuit will result when the first person is hit with that fine for failing to buy coverage, and they refuse to pay. At that point, we're talking about enforcement issues, and while I don't see the government opening re-education camps over PPACA's first wave of non-compliance on the individual mandate, there will come a point where the government can be expected to pursue this requirement and enforce its penalties against those who can not or will not comply with it. What then? Part of me suspects that most folks will simply comply or pay the fine because they will have had time to cool off and get used to the idea of it all. And part of me suspects folks will abide one way or the other because it's easy to talk about spitting in the eye of Washington; it's another thing to actually do it. Exhibit A: Everybody who temporarily becomes a libertarian (myself included) every April 15.

There also exists the possibility that if Mitt Romney wins the presidential election in November, he might spearhead a legislative overthrow of PPACA, but as much as this would comfort many of PPACA's critics, a conservative political wonk I know writes that off as a bad idea. At some point, he said, the GOP has to realize that the harder they fight health care for poor people, the worse they look. His point was that as long as the economy continues to sputter, taking a fresh legislative stab at something that goes after people's insurance costs is likely to backfire. I am not sure readers of this blog would agree, but it was an interesting idea. We'll see. All I know is that somehow I am reminded of those stories of soldiers in far-flung battlefields who keep fighting long after the war is over because they never got the cease-fire. PPACA strikes me as being like that at the very least.

Next page: People are still misinformed

#4: People are misinformed (Part II)

A recent quiz from the Kaiser Health Foundation asks you 10 questions about the details of PPACA and then compares you against the average results across the country. I got 10 out of 10, but then again, I ought to; it's part of my job to be in the know on these things. But what was a little depressing was how much my results places my understanding above that of my fellow Americans. I encourage you to take the quiz yourself and read not only the results but the percentages of Americans who got each question wrong. It is a revealing look at what people know, don't know, and think they know about PPACA. Bottom line: not much.

This is largely the fault of the people who wrote and passed the law. The original drafts for it were so thick that I'm surprised Congress wasn't cited by the EPA for depleting too many trees. Even the final version of the law, several hundred pages thick, probably was enough to stop a low-caliber bullet. (I thought about making some YouTube videos testing my theory that the law would definitely stop a .380, maybe stop a 9mm and a .45 would gut it, but I think the day we begin to mix firearms and insurance journalism is the day we all cross a line that can't be uncrossed. Plus, I'm not about to buy a .380 just for a ballistics test against dodgy legislation. Now a .45, on the other hand…)

Kidding aside, the law is not easy to understand. It is mountains of governmental legalese so high as to dissuade even the most curious reader. Even when boiled down, the essential parts of the law failed to make a dent on the public's ignorance. Part of this is because a real ignoramus isn't likely to want to know, and the politically partisan on either side know what they know and that's that. They don't like their beliefs to be questioned.

It says much that after all this time, the Obama administration has still failed to address the public's most basic need for information on this thing. Putting up a website where you can get information is easy, and frankly, ineffective. Why not address the nation to explain the law and what's at stake? Sure, such a thing would be ripe for political stumping, but it strikes me that if you're the chief executive and you're name is hung on this piece of legislation that has the entire country yelling at each other on the Supreme Court steps, you owe it to people to try to explain it in terms that even a child could understand. There is no reason to be scooped by Reddit on this one.

Next page: The Supreme Court and politics

#5: The Supreme Court should be immune to politics, but isn't.
And here, we come to the heart of it. When people asked me before the ruling what I thought the ruling might be, I told them what I had been hearing: that the Court would rule 6-3 in favor of upholding the law. This came from suggestions my news team got from sources in Washington, and obviously, trying to predict a Supreme Court ruling is a bit like reading tea leaves. The ruling was, of course, 5-4, with Chief Justice Roberts making his now-famous swing vote. Originally, he had planned to vote to strike down the individual mandate as unconstitutional, but later reversed that, despite intense pressure from Justice Kennedy to stay the course. He did not, and in so doing, upheld PPACA and earned the ire of conservatives across the land.

The reaction from all of this was pretty interesting. In conservative media, there have already been numerous articles and columns that ask the question, "Why can't conservatives pick a good justice?" The idea being that liberal justices can be counted on to vote along the lines of their political camp, which conservative justices are a little less reliable. Liberals seem to be looking at this from the standpoint that Roberts swung his vote to uphold the integrity of the court itself, something conservatives have questioned. Why is it the integrity of the court when it's upholding a liberal issue and not a conservative one? Somewhere in the mix are legal experts who explain Robert's change of heart as being that of a judicial "priest," one who puts the position of the Court over the wants or needs of any one political camp.

Already, there are comments that Roberts' ruling is in fact more conservative than it appears and that in the long run, it concedes PPACA so it can more closely restrict federal powers down the line. That certainly could be so. But I think there is a bigger issue here, and it is the deep politicization of the Supreme Court itself. When prognosticating about the PPACA ruling, one of the reasons why I was convinced PPACA would be upheld was not out of any political feeling one way or the other. It was because there has already been a large amount of money paid out to citizens by way of PPACA, and if the law fell apart, that money would have to be returned somehow. The ensuing bureaucratic chaos that would have been considerable, and while the justices are supposed to make their decisions in a vacuum, based on their reading of the law, they are still people. They still buy groceries and see movies and get cut off in traffic and live lives out in the world, and I suspected that to some degree, there would be the sense that overturning this would cause more headache for everyday people than not. Maybe I'm wrong there; I can't really presume to know what or how any of the justices think.

But the degree to which you can count on conservative justices ruling conservatively and liberal justices ruling liberally is…depressing. I am reminded of the little-known cadre of lawyers who actually draft the bills that are put before Congress. They are a team of non-partisan attorneys whose sole job is to receive from legislators from both parties an idea of what laws they want to craft, and then they figure out how to craft it in the framework of the laws currently on the books. It is a hard, often thankless job that requires great intellect, legal skill and technical finesse. Somehow, this function runs without being politicized. I so dearly wish the Supreme Court would do likewise. Because the rift among the justices is a rift among a pillar of our government that should be above our political rivalries. And yet, it is not. The PPACA ruling proves that beyond any shadow of a doubt.

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