Obamacare, SCOTUS, and the monetizing of our morals

x-posted to Justice in the

Justice Roberts surprised everybody yesterday by joining and writing the opinion for the majority in this week’s Supreme Court decision to uphold most of the Affordable Care Act (ACA). I want to suggest that his decision is to be appreciated by the progressive community not only for upholding the act but also for shifting the legal conversation.

The decision was a major step forward toward creating a more perfect union, toward helping to forge a society in which we all share obligations toward those who cannot fend for themselves, toward a vision of a just society which honors each and every person as being created in the tzelem elohim/the image of God. This experiment in democracy—in which we have given our trust and loyalty, and by way of which we have pledged to each other our lives, our fortunes and our sacred honor—has taken a major stride forward in affording tens of millions of people the ability to have health insurance and thereby health care. At bottom, upholding the constitutionality of the ACA saved lives. People who otherwise might have died, will not die because they will have access to doctors, medicines and life saving treatments.

However, the Roberts decision in my opinion also set the legal conversation about civil and human rights on a firmer moral ground. Roberts sided with the conservative wing of the court to say that the ACA was not constitutional under the commerce clause. The commerce clause, is the clause in “the Constitution [which] authorizes Congress to ‘regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (Article I, sec. 8, cl. 3)” Further, and more importantly “[o]ur precedents read that to mean that Congress may regulate ‘the channels of interstate com­merce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate com­merce.’” (quoting from Justice Roberts’ opinion p. 4) Roberts upheld the ACA based on Congress’s power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” (U. S. Const., Art. I, sect. 8, cl. 1) Roberts interprets this straightforwardly that: “Put simply, Congress may tax and spend.” (Roberts’ opinion p. 5)

Read the rest here then come back and comment.

One Response to “Obamacare, SCOTUS, and the monetizing of our morals”

  1. The decision was a major step forward toward creating a more perfect union, toward helping to forge a society in which we all share obligations toward those who cannot fend for themselves, toward a vision of a just society which honors each and every person as being created in the tzelem elohim/the image of God.

    At bottom, upholding the constitutionality of the ACA saved lives.

    Again, it’s not the job of Supreme Court justices to save lives. It is their job to interpret the U.S. Constitution.

    Sontamoyer, Ginsburg, Breyer, and Kagan didn’t vote to save lives. . . . they voted that Congress had the right to pass the ACA under its Commerce Clause powers.

    Roberts didn’t vote to save lives . . . he voted that Congress had the right to pass the ACA because the penalty therein is effectively a tax, and Congress has the power to tax.

    Scalia, Kennedy, Alito, and Thomas didn’t vote to not save lives . . . they voted that the ACA is not a law protected under Congress’s Commerce Clause powers.

    This experiment in democracy is designed for the people to elect a President and Congress, who run the country, and for there to be a court system, which stands as a final Constitutional arbiter.

    It’s not supposed to be–and it really isn’t–that there are “Liberal” and “Conservative” Justices, who just vote the Democratic and Republican line. That view is fairly insulting to the Justices.


    Jonathan1 · June 30th, 2012 at 9:50 pm

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"I may attack a certain point of view which I consider false, but I will never attack a person who preaches it. I have always a high regard for the individual who is honest and moral, even when I am not in agreement with him. Such a relation is in accord with the concept of kavod habriyot, for beloved is man for he is created in the image of God." —Rav Joseph Soloveitchik