“States’ Rights,” “Judicial Activists” and Other Distractions

There is an interesting brief here, titled “The Supreme Court’s Two-Front War on the Safety Net: A Cautionary Tale for Health Care Reformers,” by attorneys Simon Lazarus and Harper Jean Tobin of the National Senior Citizens Law Center.

The premise of the brief, in a nutshell, is this:

Over the last several decades, conservative members of the Supreme Court have: (1) used Federal-laws-are-supreme theories to weaken individuals’ rights under ERISA (the law that applies to most middle-class individuals’ health insurance benefits); and (2) used States-laws-are-supreme theories to weaken individuals’ rights under Medicaid laws (which apply to most lower-class individuals’ health insurance benefits).

The article argues that the common denominator of the SC’s legal decisions is not their oft-stated pro-“States’-rights” ideology, or their oft-stated pro-federal-law-supremacy ideology (these ideologies are of course contradictory).  Rather, the denominator ideology is to favor businesses’ interests over those of individuals.

Whether or not one believes this article is accurate, I must say I like its approach of looking at what the Court does as opposed to what it says.  One of my law school professors once likened watching court decisions to watching mice run in a maze.  The chatter is not as important as where they go.

For example, when the Court says, in the Medicaid-insurance related decisions, that “states’ rights” are the principal motivating factor, then it should follow that that states-rights motivation should similarly factor into the ERISA-insurance cases, and the decisions should be consistent.

Not so.  In the ERISA realm, State-law-rights are routinely preempted (rendered inapplicable).  For example,  thanks to pro-federal-law court decisions involving ERISA law, in a number of instances it is perfectly legal for a pension administrator to orally state to a pension participant a flat-out-lie.  For example, a pension administrator could (if his deregulated little heart so desired) intentionally overstate the amount of pension a participant will receive, to induce her to retire.  Then, he could tell her later, “Oops, we lied to you about your pension amount– you’ll get $1,000 less per month than what we told you.  But hey, because you retired, we got to replace you with our crony.”   Normally, State law claims (e.g. misrepresentation/fraud) would apply to situations like this.  But not so in ERISA-world, where the federal courts have allowed State law claims to be preempted by federal ERISA law, which does not recognize or provide a penalty for many types of fraudulent or wrongful conduct that is normally punished by various  state laws.

But what about “States rights?!”  Sorry, “states rights” are not important in ERISA-land.  Only in Medicaid-land, anti-abortion land, and other (possibly ideologically-selected) terrain.

The authors argue that, in the SC’s citation of opposite theories (pro-states AND pro-federal-supremacy), the SC is advancing a “transparently ideological, deregulatory agenda.”

Maybe so, maybe not– there are a lot more data to review, and arguments from all sides to be heard, to fairly tell where the mice at issue are truly going.

But I will say that, more than anything, it is troubling how some Supreme Court members (e.g. Scalia) will themselves cite “states rights” and other ideologies that they know to be distracting labels attached to decisions made for other reasons.

Judges, and politicians, too often cite reasons like “States rights” as a reason for making a decision when they know that is not the reason.

Judges, and politicans, too often decry “judicial activism” when they know darn well that all judges can be called “activists.”  Judges are routinely presented with legal issues that do not have clear answers under the applicable laws as written.  As such, all judges must rely upon a host of factors– including, inevitably, their own ideologies, politics and biases– that are external to the written law.  Any judge can be called an “activist” any time that judge has to interpret a legal issue which has never been interpreted before (and this happens to every judge all the time).

A theoretical agenda based on a “states’-rights” axiom is akin to an agenda based on the axiom “don’t count your chickens before they hatch.”  Sometimes, the chickens axiom makes sense (e.g. in factual circumstances under which quick-action causes errors).  Other times, it doesn’t make sense (e.g. those situations where “the early bird catches the worm”).

These rallying cries of “states-rights” in the context of abortion are just as ridiculous as someone parading around a sign at an anti-abortion rally stating “don’t count your chickens.”  Such axioms are catchy and at times superficially applicable, but they are  not a protester’s’ REAL motivation for marching for anything.  In the case of an anti-abortion protester, the real motivation for marching is not “states rights,” but that they disfavor abortion.  And that’s fine.  Just SAY so.  Don’t talk about “states’ rights” when your motivating factors are disputes with abortion (which disputes, by the way, I personally feel are intellectually- and morally- legitimate views to hold).  Put your cards on the table.  If one is a judge, all the better.  We are all human, with real concerns, and those concerns should be put on the table for all to see and scrutinize where necessary.  If our real reasons are not mentioned, then our pretend reasons will eventually expose and contradict themselves, as is argued to be the case with the Supreme Court’s Medicaid and ERISA decisions.

Here is the real barometer for the Supreme Court: how are its decisions affecting the persons before it?  In the trend of things, setting the chatter aside from the mice, are there groups or types of litigants who are most often benefiting from the decisions?  Corporations or individuals?  Rich or poor?  If the results are mixed– and there is no statistical trend of favoritism to any litigant type– then that’s the best sign the judges are doing their job, and judging objectively.

But as things stand– and in the legal and larger world– we are getting a constant earful about “states’ rights” and “activist judges” and other meaningless chatter that is infused in our environment, distracting us from watching where mice are going.

According to a health law expert quoted in the brief, “The idea of Medicaid as an enforceable entitlement is hanging by a thread.”  Are we watching the Medicaid mouse, and trying to confirm its direction?  Or are we spending our time bantering about the distracting axioms that are thrown to us?


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