Bending the Court’s Game Rules Still Offends the Public

Thursday, April 5, 2012

Page 6

IN MY OPINION (Column)

Bending the Court’s Game Rules Still Offends the Public

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

This and the last century have seen and seated two of the most consummate politicians that have ever sat in the White House. Each has been or can be bludgeoned by an obstinate Supreme Court. Franklin Roosevelt’s popular New Deal legislation was stymied by what was referred to as the nine old men. If the odds makers are accurate, Barack Obama’s Affordable Care Act, not quite as popular but immensely controversial, may be headed into a similar cul de sac. Franklin Roosevelt’s widely popular New Deal legislation was eventually saved by the demise of some of the “old men”.

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Barack Obama’s Affordable Care Act adjudication does not appear at present to be headed toward such result. What has been truly amazing is that nobody, not even that self-styled historian who is running for president on a platform of ethics in government has mentioned the ill-fated court packing plan of Franklin Roosevelt’s 1933 agenda.

President Roosevelt sought to enlarge the Supreme Court by packing it with newer, younger, friendlier faces, thus thwarting its ultra-conservative bend. Perhaps bending the Rules of the Game was offensive to the American public. A violation of the Rules of the Game is as offensive today as it was in 1933. In any event, it does not seem to have been discussed.

The death of Supreme Court Justices shortly after the abortive proposed packing of the Court has, of course, together with the New Deal legislation and the successful efforts as a war time leader, not affected the reputation of Franklin Roosevelt. It is doubtful if Barak Obama would be that lucky.

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The Affordable Care Act is nowhere as offensive to the voting public as it has been pictured by and through the media. This is primarily due to the fact that we have been exposed almost on a weekly basis to the repetitive debates of the aspiring presidential candidates who are more entertaining than substantively informing.

Three salient issues in declining importance have been presented to the Court for adjudication: (1) Can Americans be forced to purchase a product that they do not necessarily want? (2) Can that issue be severed from the other issues? (3) Are the other issues offensive enough to conservative ears as to require a finding of unconstitutionality?

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Al l the issues emanate from the construction and interpretation of the Constitution of the United States, to wit, Section 8, Powers of Congress, where it is decreed that the Congress shall have power to regulate commerce. Does that include the imposition of an affirmative duty, to wit, to purchase a policy of health insurance? Even the members of the Court have facetiously, argumentatively and sarcastically inquired whether the government can order its citizens to purchase broccoli. That question is as misleading as it is unfunny. Yes, the government has and can impose affirmative duties onto its citizens. You cannot operate a motorcycle unless you obtain a helmet. You cannot drive a car unless you procure insurance. The list can go on and on. We have graduated into a society of regulation simply because we are no longer cavemen living in a rudderless society. We are bound by government regulation simply by living in a society of laws, be they penal or civil.

For better or worse, our tri-partite system of government serves us well. There was no unanimity in Bush v. Gore, Roe v. Wade or Citizens United. That may be the strength of our democracy, and it has held us together.