Politics in the High Court -- Right, Left or Not at All?

Every news organization in the country is busy parsing the Supreme Court today and State of Health is no exception. But if you're tired of arcane discussions of the Commerce Clause, the individual mandate and (heaven forbid) the 1867 Tax Anti-Injunction Act, read on.

In a "Health Law Hearings Wrap Up" this morning on KQED's Forum, I perked up when the guests got going on how much to read into the justices' questions. These are not the first legal experts to focus on Justice Kennedy, the perceived swing vote, who asked many tough questions of the attorney defending the government's position on the constitutionality of the health care law.

But Vikram Amar, professor at the UC Davis School of Law urged caution in trying to analyze the questions too closely. "Justice Kennedy at some points in the past asked very tough questions of the government and ended up not striking down the law in question," he said.

But when the topic turned to the possibility of politics rearing its head in the courtroom, the discussion heated up.

Now, the casual observer of California politics may be aware that San Francisco leans left, politically. Friends of mine have expressed a grave concern that the justices will decide this case on partisan grounds. Indeed, Amar expressed the same fear. "I will be dismayed if the law is struck down by a 5-to-4 vote between justices who were appointed by Republican versus Democratic presidents," Amar said. "I think that will corroborate a suspicion that a lot of people have -- that I've spent my life trying to rebut -- that constitutional law and partisan politics are one and the same."

Forum guest John Eastman, Chapman University School of Law professor, was having none of that. He pointed out that everyone assumes that the four justices appointed by Democratic presidents would vote to uphold the law and that Chief Justice Roberts and Justice Kennedy are "up for grabs." He asserted that if politics was being played, it was on the left, not the right, since Roberts and Kennedy were both appointed by Republican presidents.

And what was it like in the hearings themselves? Kaiser Health News Senior Reporter Mary Agnes Carey was there. While she found the justices intent on addressing the issues of the cases, she described some of the questioning as "predictable," with certain exceptions. "The liberal judges tended to be more favorable to the administration's side," she said. "There were even periods in the administration's arguments where they stumbled a bit and the liberal justices stepped up and kind of made the case for them, ‘Aren’t you really saying xyz?’"

Eastman says it's not about politics, but about legal philosophy. He drew a link between legal theory on one hand and the Republican and Democratic parties on the other. These two "ideological poles" track very closely with the two major political parties, Eastman asserts, much more so than in the past. And those poles are about how the justices interpret the limits of federal power. Ultimately, if one of the justices who is apparently up for grabs votes against the health care law, Eastman says, "That doesn't mean they're voting because it was pushed through by a Democratic president. It means they're voting to strike it down --  because it was pushed through by an ideology that thinks that there are relatively no limits on the Constitutional power of the federal government. That's a different thing than a partisan outcome in this case."

Finally, you can't have a one-hour discussion in San Francisco about health care without someone bringing up the question of a single-payer system. Near the end of the show, a caller asked if the Supreme Court threw out the health care law, could Congress return to this alternative.

While no one was willing to predict exactly how the justices would vote on the Affordable Care Act, Mary Agnes Carey was willing to take a stand on single payer. "I can't imagine that that would happen in Washington in this political environment," she said.

Listen to the entire Forum show: