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Leslie GerwinBack to OpinionLeslie Gerwin

Will SCOTUS be found wanting in the court of public opinion?

Photo: AP Photo/Jacquelyn Martin

As the Justices of the Supreme Court deliberate the constitutionality of the mandate that Americans have access to health care, there is considerable debate over how the justices will make their final decision. While Chief Justice Roberts has insisted that the judge’s role is to act as an umpire, limited to applying rules to settle disputes, a recent Bloomberg poll found that most Americans do not believe that the Justices will assume this limited role in determining the constitutionality of the Affordable Care Act. Rather, an astonishing 75 percent of those polled indicated they thought politics would influence the justices’ decision. There is cause for such sentiment.Three recent, highly contested decisions addressing the legality of measures targeting individuals’ health suggest why the public suspects that such cases are decided not solely on legal merit.

In one case, the Supreme Court upheld the free speech rights of drug companies. In doing so, it struck down a Vermont statue seeking to reduce the risk associated with unnecessary prescription of newer, less tested drugs.  In a six to three decision, Justice Kennedy ruled that “speech in aid of pharmaceutical marketing…is a form of expression protected by the Free Speech Clause.” Ergo, legislators could not restrict pharmacists from selling prescriber-identifying information that would enable sales representatives to tailor aggressive marketing messages for expensive new drugs to individual physicians. The Court’s majority rejected Vermont lawmakers’ justification that those campaigns jeopardized patients’ health and actually raised the state’s health care costs.

Similarly, tobacco companies prevailed in their challenge to the graphic portrayal of smoking dangers. In response to the Congressional requirement that 50 percent of the front and back panels of cigarette packages contain textual and graphic warnings, the FDA proposed nine images, including representations of smoke-ravaged lungs and a post-autopsy cadaver. District Court Judge Richard Leon determined that compelling tobacco companies to use disgusting graphics containing images enhanced to evoke negative emotional reactions violated the companies’ free speech rights.

According to Judge Leon, using such images to deter smoking was “an objective wholly apart from disseminating purely factual and uncontroversial information.” Tobacco companies may have lied about the addictive qualities of nicotine and marketed to children, but Judge Leon concluded that it is unconstitutional for a government to order enterprises to use images that go beyond helping those inclined to smoke to make an informed choice.

However, the Fifth Circuit Court of Appeals had no such reservations about compelling speech designed to dissuade a woman from choosing to have an abortion. Judge Edith Jones found the Texas lawmakers’ requirements that doctors perform a sonogram, make audible the heartbeat of the fetus, and explain the results of both procedures to a pregnant woman conveys “truthful and nonmisleading” information. In rejecting the argument that the legislature was unduly burdening the rights of women and physicians, Judge Jones explained that a woman who chooses an abortion “may discover later, with devastating psychological consequences, that her decision was not fully informed.” She did not offer a law-based principle for why the legislature’s paternalistic concerns should undermine women’s rights.

To be sure, the issues in each of these cases involve different legal principles and the choice of applicable law always entails some interpretation. Thus, some argue, it is unrealistic to expect judges to ignore biases shaped by individual life experiences. However, we grant federal judges lifetime tenure on the assumption that they can restrain their political when deciding legal principles. We want to be convinced that the law, rather than the decision makers’ ideology, directs the outcome when a legislative judgment is challenged. Therefore, the outcomes of these cases might cause the public to ask: How is it that laws enacted by elected officials to protect health can be overturned by judges placing a higher value on corporate free speech rights, while the free speech rights of flesh-and-blood physicians can be trumped by ideologically-driven legislators?

When the outcomes of controversial cases do not appear to be based on consistent and understandable law-based reasoning, the public can be forgiven for assuming that in our current politically polarized environment so too are judges affected in their decision-making. Unfortunately, a sharply divided decision over the Affordable Care Act will extend basic health care services to 40 million uninsured Americans is unlikely to offer an antidote to public cynicism over the politicization of judges. Nevertheless, we can hope that in determining the ACA outcome, justices with life tenure will be guided by their proper constitutional role. This includes due respect for the judgments of elected legislators who are politically answerable for decisions. Continued suspicion of the judges as politicians is not a healthy development for our constitutional system.

Leslie Gerwin is Associate Director, Program in Law and Public Affairs, Princeton University; she teaches Public Health Law and Policy as an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law and is a Princeton Public Voices fellow through the OpEd Project.