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Shields, Brooks on Supreme Court ‘High Tension,’ Health Reform’s Future

March 30, 2012 at 12:00 AM EDT
Syndicated columnist Mark Shields and New York Times columnist David Brooks discuss the week's top political news including the Supreme Court's big week of hearings on health care reform, the validity of the law's individual mandate, the dangers of the Court evolving into a "political institution" and the Paul Ryan budget.
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JUDY WOODRUFF: And to the analysis of Shields and Brooks. That is syndicated columnist Mark Shields and New York Times columnist David Brooks.

Welcome, gentlemen, on this Friday.

So, this week, three days of hearings before the Supreme Court on the president’s health care reform law.

David, what did you make of it all?

DAVID BROOKS: Well, it’s — I’m not a constitutional lawyer, but it certainly sent shockwaves through Washington.

People have been overconfident. I think the views of the conservatives have been under-reported for months and months, and their views slighted. And it turns out there are serious concerns. And I don’t pretend to pass judgment, but it strikes me as a perfectly valid constitutional issue.

The [Supreme Court]'s favorability has dropped to 46 percent. And I think the Court is in danger of becoming very much a political institution . . . A political institution that's become politicized as part of the political campaign.Mark Shields

Basically, what the individual mandate does, it asks — it compels people to enter into a contract with an insurance company, which is not really in their best interest, in order to subsidize other people who are forced to enter into that contract.

That strikes me as a very — as a step forward in executive or governmental power. So it strikes me as a perfectly legitimate thing to do. I can see why, morally, we are all responsible for each other’s health. We’re not going to let somebody die on the street.

But, constitutionally, why the government should be compelling people to do this, that strikes me as a completely valid concern, and the justices honed right in on that one.

JUDY WOODRUFF: So, what did you hear, Mark?

MARK SHIELDS: What I heard, Judy, was a political discussion, a reminder that a judge is a lawyer who is appointed to that office by a politician, and that it struck me as rather remarkable to hear judges — justices of the United States Supreme Court reciting lines that were — actually questions that were written by the Tea Party opposition to the law.

David’s point is a legitimate one. It’s a question — I don’t know it’s not to my advantage. I think it is to my advantage to have people, everybody in society covered by health insurance, that it is now. If someone is forced to go to an emergency room, we do cover all the expenses, and at a cost to everybody. And that’s the right thing to do, to cover it.

But I think most of all, it hit me that — the change in two years. I mean, there’s no question the political sea change with. . .

JUDY WOODRUFF: You mean since the law went into effect.

MARK SHIELDS: Since the law was passed. There was a confidence on the part of the administration and the White House that once people became aware of this, there would be a change.

And people like Ken Cuccinelli, who is the attorney general of Virginia, and other conservatives saying, no, they’re going to challenge this in the Supreme Court, they were dismissed, they were treated with some disdain. And you could see this grow to the point where it’s not only possible, it may be plausible that this law will be overturned, if not in entirety, in part.

JUDY WOODRUFF: So, did you hear the justices reciting Tea Party lines. . .

DAVID BROOKS: Sometimes, yes.

I mean, I ran into some judges this week who said, it went on too long. There was no reason for it to go on three full days — or not full days, but three days. And so within — on the fringes, it’s true there were some political statements made. There were some comments, inaccurate comments, in summary of the bill.

But — and so that was there, no question. But at the core, there was this core issue, does the government — we all know that if you enter into a relationship, the government has the power to regulate it. Does the government have the power to compel you to enter into a relationship?

And that strikes me as a purely constitutional matter, a role of government matter. And there are many ways to get people to have universal coverage. And it’s worth remembering, when Barack Obama was running for president, he was against the individual mandate because he thought it would be ineffective, you could not enforce it.

You could tax people and pay them. You could give people strong economic incentives to get universal coverage. But compelling that mandate, which was the most politically convenient, is far from the only way to get there.

JUDY WOODRUFF: So you’re saying that that was the right argument to have, over the mandate, over the validity of the mandate? Mark, I mean. . .

MARK SHIELDS: Yeah, I think the argument, they went to the point that is the vulnerability, and it was a point that Democrats didn’t — they came to out of a sense of necessity, political necessity.

The mandate had its origins, the individual mandate, some 20 years ago when Bill Clinton and Hillary Rodham Clinton, the president and first lady, a Democratic administration, came up with their health care plan, and this was the Republican rebuttal. It was hatched at the Heritage Foundation, a Republican conservative — conservative think tank here in town.

It was backed by Republicans. And this — David’s absolutely right in his recitation of history, that candidate Obama opposed it. Most Democrats opposed it. Most Democrats wanted a single-payer, at least the Democrats who were engaged and involved in this. They couldn’t pass it. They didn’t have the votes to pass it. And this was the compromise plan.

DAVID BROOKS: And I would say, first, I’m for it as a matter of policy. I think the mandate is something you need if you’re going to have a good system.

As a matter of constitutional law, that’s sort of different. And so we do have to respect the Constitution. One other thing I did want to say, and I have heard this from a lot of people, is we got to see the justices in a more high-tension setting than we normally do.

And I can’t tell you how many conservatives have told me this week, we were opposed to Sotomayor, but she’s really good. And they were really impressed with her. I thought Roberts was very good. I think Scalia is always flamboyant, but also super-smart. But Sotomayor and Kagan I think really showed on that public, or the newest justices, how smart they are.

JUDY WOODRUFF: What was your take on the justices?

MARK SHIELDS: I think — I can’t make an assessment of the judges. I just — I didn’t listen in its entirety. I dropped in and out and listened to our summaries.

But I do want to say this one thing about the court. And that is, at a time when American institutions are under siege — Gallup poll last year had the favorable or unfavorable evaluation of these falling institutions — the court had been up pretty high, had been 61 percent favorable.

And after the Citizens United decision, when they opened up corporate contributions, unlimited corporate contributions, for the first time in 100 years in American politics by a 5-4 vote, the court has dropped, and a decision that 80 percent of Americans when polled opposed.

The court’s favorability has dropped to 46 percent. And I think the court is in danger of becoming very much a political institution. The reality has been in the past. . .

JUDY WOODRUFF: Political institution.

MARK SHIELDS: A political institution that’s become politicized as part of the political campaign.

Fifty years ago, Judy, it was not uncommon to see cars with bumper stickers on them, “Impeach Earl Warren,” who was the chief justice, at a time when the court expanded civil liberties and civil rights and upset established order.

JUDY WOODRUFF: So are you saying you expect a political decision?

MARK SHIELDS: I expect a political reaction to the decision, if in fact — I think the losing side in this kind of a decision, high-profile, high-intensity decision, is where the political energy lies. I think the initial reaction, if the mandate is overturned, if the law itself is overturned, there’ll be a celebratory victory lap by the part of the conservatives who prevailed, and disdain for the president, the constitutional professor who didn’t understand the Constitution.

I think after that settles in, I think what you will see is political energy on the Democratic side to — because once these rights and these — those changes have been repealed.

JUDY WOODRUFF: But just to make sure I hear you right, Mark. . .

MARK SHIELDS: Sure.

JUDY WOODRUFF: . . . you’re not saying the court is making — is injecting politics into this? You’re saying. . .

MARK SHIELDS: Oh, I think that it will be seen very much as a political decision, I mean, based upon the questioning.

JUDY WOODRUFF: Okay.

MARK SHIELDS: You got Charles Fried, who was Ronald Reagan’s solicitor, I mean, a very conservative Harvard professor, you know, say he just couldn’t believe some of the questions, that they sounded like they’d been written by the Tea Party.

I think it does become part of the political — you would then have the Citizens United decision, the Bush v. Gore decision, and this decision in the space of, what, 11 years, 12 years, that are serious political decisions that have all come down on one side.

JUDY WOODRUFF: How do see you the politics?

DAVID BROOKS: Well, and then that happened the opposite — Roe v. Wade, both sides were pretty energized after that one.

I don’t see this having that kind of scope, a Roe v. Wade, which has gone on forever. What I frankly think what’s going to happen, a lot of people on the left, the champions of the bill, will be furious, no question, if it’s struck down. We should emphasize we don’t know what is going to happen.

But as for the country at large, it’s worth remembering the bill — the law is unpopular. And the latest study, and I think the best study, suggested that 25 Democrats in the House lost their seats because of this law, aside from the economy in 2010. So I think what is going to happen for most of the country is, they will say, fine.

I’m not saying this majority — minority. And I think, on the electoral effect, it will actually help the Democrats, because the Republicans are losing the economy as an issue as it improves. They are settling on health care as their number one issue. And if that’s taken away from them, it’s tougher to run the sort of campaign they want to run.

JUDY WOODRUFF: So you’re saying there wouldn’t be the backlash or the reaction from. . .

DAVID BROOKS: I think among real champions of the bill — of the law, it will be there.

MARK SHIELDS: I think — I disagree with David on Roe v. Wade.

I think the energy on Roe v. Wade was on the losing side. That’s been kept alive by — that led to an entire political movement.

JUDY WOODRUFF: Anti-abortion, pro-life.

MARK SHIELDS: Yes, the pro-life/anti-abortion movement, and in part because it was seen that the court interrupted what had been the legislative and political process, and that this would be a case of the court for the first time in, what, 70 years, overturning a legislative act of this nature.

JUDY WOODRUFF: Just one other thing I want to ask you about. We’re on the edge of our seats on this, and that is the budget.

The House, Mark, overwhelmingly rejected the president’s budget proposal.

MARK SHIELDS: Yes.

JUDY WOODRUFF: And then they turned around and passed, along party lines, David, the Paul Ryan budget.

What — what is — it’s not a shock that this happened. But what’s the next step here? What happens?

DAVID BROOKS: We have an election.

JUDY WOODRUFF: Does it matter? It’s March.

DAVID BROOKS: We have an election. We wait until December, which is the cataclysm month, when all sort of things, bad fiscal things happen all at once.

But I give Ryan credit. I don’t agree with all parts of it, but he’s taken a step forward. One of the saddest things that has happened this week is Jim Cooper, a Democrat from Tennessee, and others put together a Simpson-Bowles bill, sort of an outline, and had them vote on that. I think it got like 38 votes in the House.

And so we’re going to end up there eventually. I don’t know when, before or after a fiscal crisis. We’ll end up with something like Simpson-Bowles. But you see the two parties not wanting to get there yet.

JUDY WOODRUFF: Including tax increases.

DAVID BROOKS: Right. Exactly.

JUDY WOODRUFF: But the Republicans aren’t ready.

DAVID BROOKS: Right. And neither are the Democrats, apparently. Almost nobody voted for this thing.

JUDY WOODRUFF: Mark.

MARK SHIELDS: The rejection of the Simpson-Bowles approach is proof that bipartisanship is no longer on life support. It’s dead in this city.

I think the Ryan budget, which I think is indefensible in a social sense, in a social justice sense, with a $394,000 tax cut for the average millionaire, I think — I think what it is, is the blueprint that House Republicans are laying down right now for the lame-duck session that follows the election.

They have staked out their position, so that this is their negotiating position. Let the White House and the Democrats try and come up with theirs. But I think that’s what they’re doing. And, plus, what they have done is they have stopped any cuts in the military that were agreed to last summer in the grand budget agreement last year, 2011.

JUDY WOODRUFF: And just quickly, real consequences of this. Do people just say, oh, there goes Washington again?

DAVID BROOKS: Well, we see what they — the parties believe in. We don’t see what they’re going to do.

So, if you’re looking for the practical consequences, zero.

MARK SHIELDS: I think there could be political consequences in the election.

I think some of the cuts that the Republicans have voted for could become issues in certain House races.

JUDY WOODRUFF: Well, we are always thrilled, our hearts race when you’re here.

(LAUGHTER)

MARK SHIELDS: Oh, my goodness, Judy.

(LAUGHTER)

JUDY WOODRUFF: Mark Shields, David Brooks, thank you both.