The Corner

Lithwick’s Clouded Vision of the Court

Dahlia Lithwick writes in Slate that in yesterday’s arguments “we got a window into the freedom some of the justices long for. And it is a dark, dark place.” (Yes, freedom is a place. A place that we can see through a window. Even though it’s dark. Just work with her, ok?) Let’s take it from the top.

“It’s always a bit strange to hear people with government-funded single-payer health plans describe the need for other Americans to be free from health insurance.” It is? Would it also be strange to hear people with government-funded salaries argue that people shouldn’t be forced to work for the government absent a clear constitutional authorization for this command?

But after the aggressive battery of questions from the court’s conservatives this morning, it’s clear that we can only be truly free when the young are released from the obligation to subsidize the old and the ailing. Justice Samuel Alito appears to be particularly concerned about the young, healthy person who “on average consumes about $854 in health services each year” being saddled with helping pay for the sick or infirm.

No. Alito at no point questions whether the young can be forced to subsidize the young and ailing, for example through taxes. His point is that one of the government’s arguments for the mandate — that it is necessary to keep the uninsured from shifting their costs to the insured — is backward: The actual point of the mandate is to shift costs onto the currently uninsured.

Or as Justice Antonin Scalia later puts it: “These people are not stupid. They’re going to buy insurance later. They’re young and need the money now.” (Does this mean that if you are young and you pay for insurance, Scalia finds you “stupid”?)

It’s not all that important, but for the record there’s no such implication. You can deny that someone with low risk-aversion is stupid because he has low risk-aversion without affirming that someone with high risk-aversion is stupid; you could just assume that intelligence is compatible with various risk profiles.

Freedom also seems to mean freedom from the obligation to treat those who show up at hospitals without health insurance, even if it means letting them bleed out on the curb. When Solicitor General Donald Verrilli tries to explain to Justice Scalia that the health care market is unique because “getting health care service … [is] a result of the social norms to which we’ve obligated ourselves so that people get health care.” Scalia’s response is a curt: “Well, don’t obligate yourself to that.”

No, Scalia is not saying that hospitals should be free legally, or consider themselves free morally in the absence of legal obligation, not to treat the sick. He is saying that a hospital’s decision to treat the sick, or a congressional decision to require them to treat them, cannot justify the mandate.

Freedom is the freedom not to rescue. Justice Kennedy explains “the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.”

Again–are you sensing a theme here?–Kennedy is not saying that people should be free to refrain from rescue. As far as I can tell, nothing he’s saying suggests that a state government could not require rescue in these situations. He is simply describing the law as it stands.

Freedom is to be free from the telephone. Verrilli explains that “telephone rates in this country for a century were set via the exercise of the commerce power in a way in which some people paid rates that were much higher than their costs in order to subsidize.” To which Justice Scalia is again ready with a quick retort: “Only if you make phone calls.” Verrilli tries to point out that “to live in the modern world, everybody needs a telephone,” but that assumes facts not in evidence.

Well, actually, come to think of it, freedom does include the freedom not to own a telephone. If Lithwick wants to defend a telephone-purchase mandate, I suppose that’s her prerogative. But Scalia’s point is merely that the individual mandate is not analogous to telephone rate regulation.

Sotomayor says, “There is government compulsion in almost every economic decision because the government regulates so much. It’s a condition of life.” But one gets the sense that not everyone acknowledges the reality of that life, much less approves of it.

Look at the actual exchange. Michael Carvin responds that yes, of course there are a lot of regulations on people who have entered the marketplace, but none of the existing ones compel entry into the marketplace. Maybe there’s a good argument against this distinction, but ignoring it can’t be one of them.

Sotomayor, again pondering whether hospitals could simply turn away the uninsured, finally asks: “What percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn’t have insurance—do you think there’s a large percentage of the American population who would stand for the death of that child if they had an allergic reaction and a simple shot would have saved the child?”

But we seem to want to be free from that obligation as well.

I assume she means that “we”–i.e., conservatives–want to be able to deny care to the uninsured, something nobody in the case and none of the justices has argued for. But she knows that’s what they’re all really after.

This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

Naturally, all of this is insane. There are plenty of ways that governments can require “shared responsibility,” etc., and even–radical notion–ways we can act on obligations without the mediation of the state. What’s at issue here is one type of federal action, and the arguments the conservatives are making about it can be made to seem more sweeping than they are only by distorting them. Of course it is always possible that Lithwick simply did not understand what was being said at the Court.


The Latest