Ruth Bader Ginsburg and the Deadly Shallows

Wonk the Vote mentioned a great article today about Ruth Bader Ginsburg and her commentary on the ACA published in New Yorker Magazine and written by Amy Davidson.  I wanted to follow up on this with some more information on the court’s sharpest mind.

“Staying power” is something that Ginsburg has. As Jeffrey Toobin says in this week’s Political Scene podcast, “Ruth Bader Ginsburg is seventy-nine. She is about five feet tall, eighty pounds, she has had every disease known to humanity. She is as tough as nails.” She made her way at a time when you could have a legal education from Harvard and Columbia and still be turned down for a job because you were a woman. She is not as loud or colorfully charismatic as Scalia—who is?—but neither does she seem to have learned to give up. (Those wondering about the liberal future of the Court might note that, on a point related to Medicaid expansion, Ginsburg was joined by only one Justice: Sonia Sotomayor.) We don’t know what happened inside the Court, or why Roberts voted the way he did. But by writing a scathing opinion, Ginsburg may at least have done him the favor of showing him what he might have looked like if he had signed on with Scalia: a political opportunist, and almost a fool.

She wasn’t the only one exerting that pressure, of course. But she is the leader of the liberal wing and the one who articulated what would have been the Court’s internal reproach.

Ginsberg’s writing on the case was full of gems including her use of Romney Care as one reason for upholding the Obama version.

In her opinion of the Supreme Court’s decision to uphold the Affordable Care Act on Thursday, Justice Ruth Bader Ginsburg made note of Mitt Romney’s Massachusetts health care law as a reason why the individual mandate was constitutional.

While Ginsburg was a part of the majority opinion, she had differing reasons as to why the mandate was constitutional. The rest of the justices found that under the Commerce Clause, the mandate requiring all U.S. citizens to buy health insurance was not valid. They upheld it as a tax.

Ginsburg, however, said it should have been upheld under the Commerce Clause, and explained how Congress followed Massachusetts’ lead in preventing only sick people from signing up for health insurance:

“Massachusetts, Congress was told, solved the adverse selection problem. By requiring most residents to obtain insurance … the Commonwealth ensured that insurers would not be left with only the sick as customers. As a result, federal lawmakers observed, Massachusetts succeeded where other States had failed.”

Ginsburg continued, citing briefs “noting the Commonwealth’s reforms” and “noting the success of Massachusetts’ reforms.” She noted that the reforms reduced the number of uninsured to less than 2 percent, the lowest rate in the nation. 

“In cou­pling the minimum coverage provision with guaranteed­ issue and community-rating prescriptions, Congress followed Massachusetts’ lead,” Ginsburg wrote.

Ginsberg did not write an ideological screed like the opposition.  Instead, she actually focused on well known economic theories like adverse selection or the “lemons” problem and indicated a direct knowledge of the concept of externalties noting that broccoli was a private good.  It is a good that is separable from public benefits and costs.  This is the traditional microeconomic way of looking at how to determine if a good should remain in a basically unfettered private market or should be considered for regulation or public provision.  Scalia’s broccoli horrible indicates the man has no knowledge what so ever of basic market structures and economics. Ginsberg toasted his cerebral marshmallows on that one.

It’s the noxious “broccoli” argument, a Tea Party cock-and-bull story elevated to law by the chief justice of the United States. But as the unflagging Ruth Bader Ginsburg explains, in her often hilarious separate opinion, “although an individual mightbuy a car or a crown of broccoli one day, there is no certainty she will ever do so;” nor will she get broccoli for free “at the expense of another consumer forced to pay an inflated price”. Ginsburg calls this freshman slippery-slope reasoning “the broccoli horrible”, and she mocks her conservative benchmates for imagining that “a vegetable-purchase mandate” could bring down the healthcare costs of “lithe Americans”:

“The court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.”

Unlike broccoli, healthcare is something everyone, but everyone, will need at some time. For Ginsburg and the other liberal justices, the individual mandate is not the unprecedented dilemma Roberts insists it is. There is nothing particularly new here. On the contrary, it fits in naturally with what Ginsburg calls “Congress’ large authority to set the nation’s course in the economic and social welfare realm”, and failing to recognize the legislature’s power to do so under the commerce clause is for her “stunningly retrogressive”.

Scalia was so played in her argument that he should blush every time he sees her if he had any intellectual honesty at all.

Again, the argument is insane. It’s even difficult to apply the term shark-jumping because that sounds too mundane for this leap to surreality.

What’s so horrible about eating broccoli?, the legal naïf might wonder. But then Justice Ginsburg comes back at him very sharply:

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.Even in her brave opinion, Justice Ginsburg reveals the heart of the problem: nobody on the Supreme Court knows how to cook broccoli.

Speaking of intellectual dishonesty,Governor/exorcist/kidnapper Bobby Jindal took the leap to intellectual dishonesty infinity and beyond with this one. He obviously spent know time with the court’s opinion.

Louisiana Gov. Bobby Jindal (R) said Thursday’s “frightening” Supreme Court ruling could lead to penalties for Americans whose lives are out of step with government priorities.

On a call with reporters, Jindal said that the decision to uphold the healthcare law as a tax is a “blow to our freedoms.”

“What’s next?” he said, expressing concern for people who “refuse to eat tofu” or “refuse to drive a Chevy Volt” — a popular hybrid car.

He doesn’t even realize how he just got dumped into Ginsburg’s trap. But, that’s about what happens when you go after the crazy little Teabot vote.

She even managed to call Roberts an “activist” judge by reminding every one of precedent.

“Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, THE CHIEF JUSTICE relies on a newly minted constitutional doctrine. The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to `compel individuals to become active in commerce by purchasing a product.’” This argument gets “no force from our precedent and for that reason alone warrants disapprobation.”

Jindal sure missed this one.

Ginsburg: Congress can’t do silly things like compelling people to eat broccoli or buy General Motors cars because that would violate the well-established reasonableness test under previous Supreme Court decisions. But even if it did, the voters would rebel.

“As the controversy surrounding the passage of the Affordable Care Act attests, purchase mandates are likely to engender political resistance. This prospect is borne out by the behavior of state legislators. Despite their possession of unquestioned authority to impose mandates, state governments have rarely done so.”

It’s a good thing we have a few true intellectuals and scholars around still. May we continue to be blessed by her fine mind.

You can read the entire ruling here.

12 Comments on “Ruth Bader Ginsburg and the Deadly Shallows”

  1. ecocatwoman says:

    One (me in particular) might think that the esteemed Madam Justice Ginsburg guilted Roberts into voting in favor of upholding the individual mandate. At least he must have understood her biting commentary. In Scalia’s world, the words of women carry no weight.

    Great commentary, Kat, as usual.

  2. bostonboomer says:

    I can’t believe John Yoo had the nerve to join the right-wing chorus on the health care decision.

  3. bostonboomer says:

    Great post, Dak. Do you have a link to the full Ginsburg opinion? Also, your “broccoli horrible” link doesn’t work.

  4. RalphB says:

    Justice Ginsburg should also have gotten her way here. On the Medicaid expansion, good luck to the AHA and the AMA in lobbying the states for it.


    Abortion is theoretically legal nationwide, but it’s widely available in only some states, and it soon won’t be available at all in some. Gay marriage will probably soon be legal in many states — and will probably never be legal in others. Up here in the Northeast, we have gun laws; in most of the country, it’s a firearms free-for-all.

    And now, as ProPublica, The Wall Street Journal, and The New York Times have noted in the past couple of days, it’s quite likely that many states of the Union simply won’t go along with the Medicaid expansion in the health care law, thus continuing the process of turning America into two nations engaged in — to use a phrase I didn’t coin — a cold civil war:
    On the Medicaid front, as the Times reports, there is the possibility that there’ll be pressure on reluctant states to go along with the expansion — and guess what the source will be:

    Health care providers who treat low-income patients strongly support the expansion of coverage.

    Richard J. Umbdenstock, the president of the American Hospital Association, said that hospitals around the country would lobby for the Medicaid expansion….

    Nancy M. Schlichting, chief executive of the Henry Ford Health System in Detroit, said she “absolutely will lobby” for the expansion of Medicaid. She said she expected Gov. Rick Snyder, a Republican, to support the expansion, but she added, “he may have trouble” getting it through the Michigan Legislature.

    Is near-universal coverage going to happen only because the fat cats of Big Medicine lobby for it? Maybe.

  5. NW Luna says:

    Health care providers who treat low-income patients strongly support the expansion of coverage.

    Not just fat-cat hospitals. This also includes community clinics and nonprofit hospitals who now treat the lion’s share of Medicaid — and Medicare — patients as fewer and fewer other providers accept those insurances. Community clinics also treat those without insurance, often using a sliding scale for requested payment.