Four Ayatollahs and a Decider

As we await with trepidation the Supreme Court’s decision on so-called “Obamacare,” it’s a good time to think about how our system really works. Who makes the ultimate decisions that shape our society? Are we really a “democracy” as we claim? Are the deciders rational?

Some day soon—perhaps Monday—the Court will announce whether 30 million people who don’t now have health insurance will get it, or whether they will be thrown back into health-care limbo. For those 30 million people, mostly poor and unemployed, few decisions could be more consequential.

Our nation has the most advanced medical technology in human history. The Court will decide, in effect, whether the 30 million will have to join a real insurance pool so that they can enjoy that technology, or whether they will suffer and die if they get sick or injured because they can’t afford the private admission fee.

This decision is a matter of life and death for millions. The President and Congress did the best they could to solve a long-festering problem of access to health care. No one thinks their solution is perfect. But it was and is the best our elected representatives could come up with—not just in the Obama Administration, but for the last century. The issue goes back precisely 100 years, to Teddy Roosevelt, not Franklin.

Unfortunately, our Court will not decide based on consequences. It will not decide based on empathy for the 30 million. The four ideological so-called “conservatives” and the decider [subscription required]—Justice Kennedy—will rule based on legal abstractions and abstract ideology.

Faced with a valid act of Congress, signed by the President, the Court can only reject the law for failing to comply with our Constitution. According to the Court’s so-called “conservative” majority, it will have to ask itself what our Founders, who wrote and ratified our Constitution, would have thought if they were alive today, but without any knowledge of modern times or intervening history.

That’s their criterion: so-called “original intent.” They care not what the Constitution means today, but what it meant in 1791, the year it was ratified. They seek a time warp in which the intervening two centuries never happened.

There were no CAT scans or MRIs in 1791. No one knew what DNA is. The acronym didn’t exist. There were probably only a handful of people on our whole continent who would even have understood that “deoxyribonucleic acid” is the name of an organic chemical.

A heart transplant is routine today. Then it would have been considered witchcraft. Anyone attempting one would probably have been burned at the stake, like the “witches” in the Salem witch trials.

But the good “conservative” justices want to transplant themselves back to that era to decide what we should do today. They want the dead hand of history to rule us now.

How, pray tell, does their rule differ from that of Iran’s Ayatollah Ali Khamenei, its Supreme Leader, who rules absolutely based on the language of the Qur’an, written over thirteen centuries ago?

The Qur’an is older than our Constitution, much older. But isn’t the principle the same? What abstract thinkers think their revered ancestors thought rules the present day. There’s not much attention paid to present circumstances or consequences. We look backward, though a glass darkly, to see “solutions” to our most dire current troubles.

The “wisdom” of the past beckons. But it lacks one essential thing: empathy for real people who may suffer and die in the present tense.

The good Ayatollah at least has the moral sense to recognize that the lust for nuclear weapons is “evil.” Can our four Supreme Court ideologues recognize the same about letting poor people suffer and die in a society that could easily save them?

Mohammed had no nuclear weapons. Even as a prophet, he probably could not have grasped their diabolical destructive power. Likely he would have instinctively agreed with the Ayatollah that their use would be the ultimate evil.

But who really knows? In each case, all we have are a dry legacy of words on paper, centuries old.

We ought to draw from those words basic moral lessons and reason from there. But the so-called “conservative” majority on our Court won’t go back to the underlying morals—the ethos of a new society settling in a wilderness and trying to take the old world’s best and leave the worst behind. Instead, they just want to trust just the old words, the bare abstractions. In so doing, they basically arrogate to themselves the power to make it all up.

History repeats itself. The same thing happened nearly a century ago, eighty-three years ago, to be precise.

Then, there was another financial catastrophe. Then, the finance sector caused that one, too. The mechanism was much simpler than today’s derivatives, but its impetus was much the same. Buying securities on margin was supposed to add more joy to a party that would never end. But the party did end, with suddenly bankrupt people jumping out of Manhattan skyscrapers to their deaths. The Crash of 1929 began the greatest financial catastrophe, so far, in human history.

When FDR tried to play the practical politician and make things better, who held him back? The Supreme Court, of course. The same sort of so-called “conservatives” existed then. Roosevelt called them the “nine old men.” (There were no women on the Court in those days.) For several years, they found all sorts of abstract reasons to strike down the laws that he proposed and that a worried Congress duly enacted.

Roosevelt resolved to “pack” the Court—increase its membership with new appointees and change its direction. Congress had, and still has, the power to do that.

But Congress balked. No one wanted to disturb the mystery of history, or to take responsibility for deciding what the Founders would think if they had grown up and had been educated then, rather than in the eighteenth century. So FDR backed down, and his program of national renewal had to wait several years to begin. Law schools now teach those old cases as bad law, examples of what happens when so-called “jurists” become political.

Will it be just so with President Obama? As we await the Court’s current big decision with fear and trembling, we have two awful precedents to digest. Both are, of course, rulings by the Court’s so-called “conservative” majority.

One held that cities and states cannot legally control deadly small arms within their borders. Ultimately they must ask the Court to shape the limits of their power to control armed violence. And while they wait years for a decision, real people—including a congresswoman—suffer or die from needless gun violence, at the hands of deranged or criminal gunmen. (Why are the perpetrators always men?)

The second decision—Citizens United—held that corporations are “persons,” and that money is speech. So corporate managers and rich people can use their wealth to propagandize the American people to do their bidding. Goebbels waxes green with envy, rather than mold, in his grave.

To say that these decisions undermined American democracy would be an understatement of Obamanian proportions. But the so-called “conservative” members of the Court profess to uphold sacred historic values, known only to themselves.

Like the good Ayatollah, they live in their heads, not on the ground. Live people and their current cares mean nothing compared to their divine abstractions. Facts themselves don’t matter unless they fit the theory.

Scientists would flinch. But that’s the way things are.

So Justice Kennedy must wrestle with his abstract ghosts. “Liberty,” the news says [subscription required], is his obsession. But is it the “liberty” of free riders to shun insurance to save a few bucks and later burden taxpayers with their care if they get sick or injured? Or is it the “liberty” of 30 million ordinary people to participate in the medical-technological revolution that our society has wrought at great expense, and therefore to be free from fear?

Only Justice Kennedy knows. Because the Court is otherwise deeply divided by abstract ideology, he alone will decide. He alone may have the strength to consider real people and real consequences.

Is that democracy? A single man—appointed, not elected—deciding matters of life and death for 30 million people, based on his personal notions of “liberty”? And we belittle the Ayatollah!

If the concept of “judicial restraint” means anything to Justice Kennedy, he should let this one go by. To set his own idea of “liberty” above the admittedly imperfect result of a century of political striving would be the height of hubris. We will soon see whether this man has a trace of the humility that marks great jurists.

As for contempt for the poor and underserved, we’ve seen it all before. Their “betters” condemned the street beggars in Dickensian England for laziness, lack of education, bad manners, and unfortunate birth. So today the so-called “conservatives” condemn the poor, unemployed, and recently fired as responsible for their own suffering. The more things change, the more they stay the same.

But our species’ dirty little secret is to the contrary: cooperation and social cohesion. We can’t accomplish much on our own, as individuals. Together, we can fly the globe, reach the Moon, build nuclear and renewable power stations, and make nuclear weapons to destroy each other and our planet.

Without each other—without cooperation and cohesion—we are nothing. But there can be no effective cooperation without empathy. Hitler and Stalin tried to force cooperation. They seem to have failed.

So as we look to the future, we should look to leaders who have empathy. Who has more, the President or the Supreme Court’s so-called “conservative” majority? the President or Mitt Romney? The Ayathollah or the street demonstrators in the Arab Spring? Upon the answers to these questions, the future of our nation and perhaps our species will depend.

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