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Health-care case illustrates problem of life-time Supreme Court appointments

SCOTUS courtroom illustration
REUTERS/Art Lien
Courtroom illustration of U.S. Solicitor General Donald Verrilli, right, speaking to Justice Antonin Scalia, left, Chief Justice John Roberts, center, and Justice Anthony Kennedy.

The framers of the Constitution didn’t guarantee a whole lot of direct democracy. They required that the U.S. House be elected directly by the people. The members of the U.S. Senate, according to the original Constitution, would be chosen by the state Legislatures. Of course the legislators would (with variances from state to state) be chosen by the people, so the senators were once removed from democratic accountability. And that was changed anyway, in 1913, by the 17th Amendment, providing for direct election of senators.

According to the original Constitution (and, technically, this is still the case), the president was to be chosen by one of two methods, neither requiring a popular vote. The states (by whatever means they chose, and in the early years many states did not hold a popular vote) would appoint electors. The electors would vote for president. If any candidate received a majority of the electoral votes, he would become president. If not, the choice of president (this is still on the books, although it has happened only twice and not since 1824) would be thrown into the U.S. House.

Then there’s the third branch, the judiciary, headed by “one Supreme Court ,” whose powers “shall extend to all Cases, in Law and Equity, arising under this Constitution.”

It’s curious (or do I mean obnoxious) to note that the Constitution does not explicitly state that the Supreme Court can overrule the Congress and/or the president with regard to which laws are “unconstitutional.” That word appears nowhere in the text of the Constitution. From Madison’s note of the deliberations of the framers, it seems likely that they had something along those lines in mind, but it is not a power explicitly granted to the judiciary and wasn’t really established until later. To the degree that deciding which laws are constitutional would become the most important function of the Supreme Court, the Framers likewise never suggested, and certainly didn’t mention in the Constitution, that the interpretations of the words they wrote must be guided by some future judicial seer’s ability to divine their “original intent” behind their word choices. That all came later.

The Constitution also did not set the size of the court and it has, over history, been larger and small than now. But it has been a nine-justice court since 1869. (We’ll save a discussion of FDR’s famed court-packing scheme for another day.)

Two things have never changed: 1. When a vacancy occurs, a replacement is nominated by the president, subject to confirmation by the Senate; and 2. The justices “shall hold their offices during good behavior,” which means they can serve until they die, decide to retire or are impeached for bad behavior. (No justice has been impeached since 1804 and even that one wasn’t removed by the Senate.)

Worried about corruption

The framers worried a lot about corruption and felt that the life tenure of federal judges and justices would ensure their independence. A lot of things have changed since then. The framers were hoping that U.S. politics could somehow occur without parties or partisanship. But that turned out very quickly to be a pipe dream.

The framers didn’t have much basis to foresee the kind of partisan/ideological cleavage over policy that would overtake not only the appointment and confirmation of justices, but the work that the justices do in deciding titanic “Case, in Law and Equity, arising under this Constitution.” They probably weren’t thinking that with increases in life expectancy, a Supreme Court justice might serve 30 or, in the case of longevity-record-holder William O. Douglas, 36 and a half years. They certainly weren’t thinking that the issue of abortion would become  not only a Supreme Court issue but the litmus test that would determine who was and – depending on the political party of the president --  wasn’t qualified to serve on the Supreme bench.

William O. Douglas
Library of CongressWilliam O. Douglas

The language of Article III establishing the Supreme Court and establishing life tenure has never been amended. But around it has developed a system by which recent presidents have learned to appoint young justices, to increase the chance of the 30-plus-year tenure and the justices have learned to time their retirements largely – to the degree they swing it -- on the basis of the party that occupies the White House and, when they reach a certain age, to hang on until the right party takes (Oval) office. And great matters of law and politics hang on the ability of justices and the presidents to guess right on those questions.

So, at present, the oldest justice, Clinton-appointee Ruth Bader Ginsberg, who turned 79 in March, and who is a cancer survivor, has been criticized by some for not retiring a year or two ago because there is no guarantee that Barack Obama will be reelected and she might not be able to hang on through a Republican administration.

And now we have the biggest Supreme Court  case in decades, which purports to be about the limits of the power the framers delegated to the Congress, but is also about whether millions of Americans will have health insurance.

And it will be decided by two justices (Antonin Scalia and Anthony Kennedy) appointed by Ronald Reagan, one (Clarence Thomas) by George H.W. Bush, two (Ginsberg and Stephen Breyer) by Bill Clinton, two (Chief Justice John Roberts and Associate Justice Samuel Alito) by George W. Bush and two (Sonia Sotomayor and Elena Kagan) appointed by the current incumbent, President Obama.

Now Ronald Reagan twice received a mandate from the people to exercise the powers of the presidency, but he last received it in November of 1984. This is 2012. His two appointees (who have, in some sense, the votes to swing most close cases one way or the other and almost certainly have that power in the current big health care case) have democratic legitimacy – in the sense of having been appointed by someone elected by the people – that is 28 years out of date.

It seems likely that this diatribe/tour-of-the-Constitution will be taken as sour grapes by a liberal who fears that the health care law will be struck down and has decided to vent spleen at the poor old framers. In fact, I had been working on this and other similar diatribes/tours-of-the-Constitution for an occasional series that I hope to produce before Election Day. So I moved it up and here it is.

Proposed change

But, for the record, the idea that the life tenure for Supreme Court justices has become a problem, for some of the reason cited above, is not new and certainly not original to me. Many of those who agree that this is a problem have tended to congregate around a proposal for Supreme Court appointments that would last for 18 years. With nine justices, one would rotate off every two years. Every president would be guaranteed of appointing a couple and the rotation would be freed from the vagaries or death, illness, disgrace or (as in the recent case of Justice David Souter) a justice who had just had a bellyful of Washington.

In an anthology of essays by Constitution scholars about the dumbest things in the Great Charter, Professor L.A. Powe, Jr. of the University of Texas Law School, devoted his chapter to the issue of life tenure. He endorsed the 18-year limit and closed his essay thus:

Eighteen years is long enough to do the job and then do it well and to guarantee independence from the elected branch, while short enough to avoid the unseemly problems that life tenure creates.

(Powe, by the way, clerked for Justice Douglas, who stayed on the court until after he was incontinent and wheelchair bound.)

Stuart Taylor, Jr., the veteran Supreme Court reporter, listed the case against life tenure in this short, lively Atlantic piece, which includes wonderful data on how much longer and older recent justices are staying on the court, compared to the historical record. In case you don’t click through, here are the bullet items on his list of the “subtle but serious” problems associated with the lifetime appointment of justice:

Decrepitude, Intellectual autopilot, Hubristic complacency, Unaccountability, Randomness, Uglier confirmation battles, Eroded legitimacy, Diminished productivity.

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Comments (34)

SCOTUS term limits

You make a good case.
Might add the factor that people tend to live longer these days, although justices seem to have been a long lived species (some of them seem to have survived on pure spleen).
On the other hand, the evolution of justices is not predictable. You mention David Souter, who was appointed on the supposition that he would be conservative.

I'm ambivalent

about such a fundamental change. All federal judges appointed under Article III now have life tenure; would they be kicked off the bench after 18 years, too? Congress wouldn't do anything but hold judicial confirmation hearings if that were the case, but what is the justification for treating Supreme Court justices less favorably? On the other hand, it does seem wrong for Presidents who serve at most eight years to shape the Supreme Court for three or four decades.

To Paul's point: one of the advantages of life tenure is that it allows a jurist's philosophy to evolve. He mentions David Souter. Other examples of Republican appointees who evolved in a more liberal direction the longer they sat on the bench are John Paul Stevens and Harry Blackmun. It seldom worked the other way, with liberal appointments becoming more conservative. Of late, however, the long-serving conservative justices (Scalia and Thomas) have become more ideological and farther right over time. Perhaps this reflects the trend of their political party and/or the increasing politicization of the Supreme Court.

Eric's proposal would be tempting if it would reduce the politicization of the Court but I'm afraid there's no putting that genie back in the bottle. I know the more conservative posters on this site won't agree, but the Court lost credibility in the eyes of many as a result of Bush v. Gore and Citizens United. If they throw out the mandate, they'll lose more. When a conservative like Charles Fried (former Reagan Solicitor General) characterizes the justices' questioning on the ACA as "politics, politics, politics", everyone has to take it seriously. The Supreme Court has the last word on the constitutionality of state and federal laws. Not everyone is going to like their decisions but they have to believe they're fair and principled. When the public sees their rulings as nothing more than an expression of partisan politics, the Court becomes yet another institution that has lost the trust of Americans. I'm afraid we're becoming a nation of cynics motivated solely by the belief that the fix is always in, so we might as well grab ours by whatever means necessary. I see nothing good coming out of that scenario.

Sounds good to me

If the Supreme Court is going to be in charge of keeping the Constitution clean, it should be apolitical. But, since that's apparently impossible, regular spring cleaning is probably in order. Many of the justices serving on this court have been involved in the most ridiculous interpretations of the Constitution they possibly could have. That is clearly not the wisdom the founding fathers were thinking of when they drafted the Constitution as they did.

Lifetime isn't the problem

These justices were confirmed by Democratic majorities. The problem has been Democrats who failed to recognize ideologues and stealth partisans, and then failed to block their appointments. I almost fell out of my chair a couple years ago when Joe Biden said if he had it do over again he'd consider ideology as well as judicial qualification when confirming nominees. Ya think?

I agree

as would most conservatives. You can't justify being in favor of term limits for two of the co-equal branches of government, as conservatives are, but not the third. Besides, the octogenarian hangers on always seem to be the liberals.

But suggesting that the current decision on Obamacare is "about whether millions of Americans will have health insurance" is a bit over the top. Just because this unconstitutional attempt at a solution doesn't solve the problem of affordable health insurance doesn't mean the problem isn't solvable. People just have to be open to solutions that don't involve total government control of all health insurance policies.

There are many conservatives

There are many conservatives that oppose term limits, just as there are liberals that support them.

As for "Besides, the octogenarian hangers on always seem to be the liberals." give us a few years, and it will be Scalia, Thomas and Alito sitting on the bench long after they're incontinent.

After all, Scalia is 76, and I see no signs of him stepping down anytime soon.

lifetime tenure

This sounds like an excellent proposal and I don't know why Congress wouldn't support it since both Republicans and Democrats get caught up in this long-tenure issue. It would probably be a wash in the long run.
Along with limiting tenure, the judicial system, the attorney general, or Congress (don't know if they could do this) should be subjected to the same ethic restraints as everyone else. Travesties like Clarence Thomas and Samuel Alito would not be able to continue doing specifically right-wing things like appearing at Conservative conferences.

Maybe

I can understand the idea behind an 18 year term but it feels a bit like a solution in search of a problem. If Justices were hanging on well into senility that would be one thing. The questions from Scalia and Kennedy seemed sharp to me. So did Ginsburg, the oldest Justice. We've had a very balanced Supreme Court for some time. Regardless of which President appointed them, we've had plenty of 'swing' vote Justices.
If I was going to suggest some kind of fix, it would be for each party to put out some kind of list of principles that they look for in a Justice. I'm thinking of something that would make the confirmation process more honest than it currently is.

"The questions from Scalia and Kennedy seemed sharp to me."

Really? You were impressed by Scalia's kvetching about the length of the law (“What happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that?")? His "broccoli" question? How about his beating of the "Cornhusker Kickback" dead horse?

He wasn't even phoning it in.

2700 Pages

Yer darn tootin I didn't want the Justices going through nearly 3000 pages of legislation and picking and choosing what could go and what could stay. I'd much rather they boot the entire thing back to Congress so they can do a better job. And joking that making them work through the whole thing (maybe the first people to do so!) as cruel and unusual is fine with me.
As to the 'Cornhusker kickback', I think it was fine of him to use that as a hypothetical of something that could be more easily cut out. If it embarrasses libs to have to remember the lengths they had to go to get the right number of votes, well, so be it.
Kind of similar to the broccoli question. Maybe you don't understand why some people are worried about unlimited powers of government. The Supreme Court was asking the administration where the limits are and it isn't Scalia's fault that the SG couldn't give a good answer.
Looking around online I'm hearing a lot of kvetching about those mean ol Justices for actually asking questions that libs don't much care about. That strikes me as an indication of close mindedness from the Left more than any kind of serious problem from the Justices.

Pay attention

There is no "Cornhusker Kickback" (Fox News terminology) in the ACA. And what if there was? It has nothing to do with the constitutionality of the law. It's purely political and a right-wing buzzword.

Know what you're talking about if you're going to post comments.

Glass Houses and Whatnot

When Scalia mentioned the Cornhusker Kickback (and yes, I'm going to use a common term so that people understand what's being talked about), he was saying that if the court was going to throw that out because of a hypothetical Constitutional ban on Congressional bribes, or kickbacks, that cutting out that one portion wouldn't be enough to invalidate the entire law. He was making a point that *helps* your side. You could try paying attention, yourself.
And I'm very sorry that your tender ears can't handle people labeling things in ways you don't like. The idea of bribing a Senator with a blatant kickback should be offensive. If Congress had done a decent job of designing a health care bill, they wouldn't have had to resort to such unsightly things. Hiding a bribe under legalese doesn't make it any better. No matter how much you want to pretend that it does.

tenure

Interesting, you don't think the move to a partisan supreme court is a challenge. PBS commentator said many of the questions are right out of the ALEC playbook.
You do NOT understand this program. It does NOT hand over power to the federal government. It does get insurance companies out of the power business of raising premiums and denying coverage to people, or cutting it off.
Health care is a right.
We are the only developed country in the world that does not guarantee health care to everyone.

Well

If a PBS commentator said that, then everything is changed! Look, I'm not outraged that conservative Justices may have read things from conservative circles. In the same vein, I'm not outraged that liberal Justices have obviously been reading things from liberal columnists and liberal outlets. And unless I see some outrage from libs about possible tampering from the left, I'm going to just assume that this is normal partisan BS. If you're outraged that the other side has ideas and whatnot, well, I think you need to grow up.
Despite your Caps Lock button, I do have some handle on the program. Of course it hands power over to the federal government. In this case it has handed power to them to compel people to buy a product or face a penalty. I know the structural argument for doing so (to eliminate the free rider problem) but I also feel that simply because there is a structural argument that DOESN'T override the problem with giving that problem to the federal government. This may not concern you but it obviously does other people. Try and stretch that empathy a bit and figure out why.

I don't believe you have a right to anything that you can only have if someone else gives it to you. This difference between 'positive' and 'negative' rights is one of the big differences between right and left leaning thinkers. I believe that our attempts to provide health care through large government programs has made actual medical care far more expensive than it would have been otherwise. I believe that our repeated attempts to use an insurance model to provide medical care has lost us any real insurance benefit and had other negative consequences. I don't think that other developed countries have avoided these pitfalls either. They also are wildly expensive and haven't shown any real advances in overall health.

Original intent

I have nothing specific to back this up, but I suspect the authors of the Constitution thought Supreme Court justices would be considerably older (hence, wiser) when they were named to the Court. Naming younger justices was a tactic developed in the Reagan years, to put a long-lasting rightist stamp on the Court.

Older then

Is younger, now. The earliest justices were no older than the more recent ones, and probably no wiser. I just doubt that the founders expected anyone to live so long.

I agree, as well

I’ve been a staunch opponent of term limits for many years, but the abominable Citizens United ruling has changed my mind. I have to agree with Dennis Tester’s first paragraph, not to mention the jaundiced eye with which Eric is looking at the current SCOTUS.

Citizens United will see to it that, in the elected branches, incumbents – at least the incumbents who do enough posterior-kissing of big political donors – will have an insurmountable advantage in all but the most egregious cases, and support for term limits in those branches pretty much requires support for term limits in the judicial branch from the standpoint of logic, if nothing else. I don’t mind justices being appointed – that seems a legitimate perk of a president, and might be as close to something parliamentary as we ever get – but the lifetime tenure does, I think, tend to make justices increasingly out of touch with the culture. Sometimes, they’re only a little bit out of step, sometimes, a lot, but “inside the beltway” is not where anyone finds out what’s going on in the country. A kind of rotating tenure might be the only viable way around the issues raised, and 18 years strikes me as a fair balance between institutional memory and changing times.

Mr. Tester’s second paragraph, of course, is one I can’t agree with, and since *someone* is going to be in control, no matter what, my personal bias is in favor of complete and total government control of health care, right down to running the hospitals, making medical personnel government employees (and paying the expense of medical school for physicians, nurses, and other medical personnel), and deciding who gets the new liver and who doesn’t. Right now, the people who make those decisions are not interested in my health. They’re interested in my bank balance, and the ROI to shareholders. Instead of a faceless government bureaucrat deciding if I live or die, it’s a faceless insurance company bureaucrat. The former is at least minimally responsible to the public. The latter, being part of a private company, is not.

Citizens United

For at least the last thirty years incumbents have had a worrisome reelection rate. I think it's too early to blame any of that on Citizens United. In fact in 2010, the only election we've had since CU was decided, nearly 60 incumbents were knocked out of office. I'd say that the evidence is kind of opposed to your point at this time.

Issues

There seem to be two separate issues involved here:

First, there is tenure in office, otherwise known as term limits.
One compromise solution here would be a retention vote: after 12 years in office, a justice would have to be reconfirmed by 60% of the Senate (these numbers are negotiable).

Second, there is age. Note that this is confounded with gender; women live an average of seven years longer than men in the United States.
Thus Ginsberg (born in 1933) would be expected to outlive Kennedy (born in 1936) and Breyer (born in 1938).

The Third Political Body

The life tenure seems to amplify how "different" these men and women are. I probably know hundreds of people fairly well and only about a dozen of them are as extreme as any of the 9 justices. I understand that we need skilled law professionals to parse through conflicting decisions by lower courts, but these people are just another group of political hacks when they get involved with Bush v Gore and ACA.

Function

The SCOTUS justices can only consider cases that come before the court -- they cannot chose to be involved in a case that has not already been through the lower courts without a satisfactory resolution.
The reason that they are involved in ACA is that different district courts have come to different conclusions; it is the job of SCOTUS to resolve this conflict.

Fine with 18 years

In general I despise term limits as a gutless approach to elections. We already have it - it's called "the vote".

But with respect to the Supreme Court I would be in favor of an 18 year limit, since the justices are not subject to the vote. I don't know that it would fix anything, however.

I'm afraid that in general I'm in the camp discussed by Ann Spencer in her comment. I don't consider that the Court has a lot of legitimacy any more. Impact, yes, legitimacy, no. Bush/Gore pushed me in that direction, Citizens United pushed me even further, and if the ACA is thrown out, that will seal the deal with me. The current Court sides only with corporations and entrenched power interests, and has been acting largely as the enforcement arm of the Republican Party, and therefore is merely another corrupt political institution.

When the Court has lost its legitimacy, the American Experiment has failed. Sad to see the once grand Republic become yet another oligarchy.

Terms limits, yes please.

I agree with Eric and those he cites as a basis for limiting US Supreme Court terms to 18 years. It could be 15 or 20 but the idea of limiting to it to 20 or under has great merit in light of 200+ years of experience under the Constitution. The Court is political, it's unfair to allow one party to have veto power for 28 years over legislation. I guess I'm still reserving my call on how this case will turn out. No one can predict a decision, especially in a case like this, from the way the oral argument goes. I can say that it will take a lot of arrogance by the Justices to overturn this law. The question is whether the Chief Justice Roberts is so arrogant and tied to his prejudices as to override his responsibility as Chief Justice to integrity of the Court as an institution.

Wishful History

Does the writer really believe that strident factionalism is a modern invention? The Framers were fiercely divided on many issues, such as slavery. They had just won a war where some two-thirds of their neighbors had preferred keeping allegiance to the Crown.

A long term was not a such a rarity, either. The 3rd appointee served 21 years. John Marhsall served from 1801 to 1835, some 34 years. The next appointee after Marshall served from 1804 to 1834.

Event the opening sarcasm belies a misunderstanding. The Framers did not include *any* direct democracy. They feared the tyranny of impassioned men who could whip together a majority to serve whatever popular whim befell the public.

The alleged problems arise not because the Framers got it wrong, but because we stopped following their model. The Supreme Court was not to be the final--or only--bulwark against unconstitutional acts. Each and every officer throughout gov’t was expected to honor his Oath to preserve the Const’ion.

The Progressive century has defiled our Founding ideal, attempting to concentrate all power in a massive administrative Federal Government. it is this politicization of everything, and the Progressive desire to perfect the public by force that has thrust the Supreme Court in to the role as a last chance to inject some limits on what may be done to the people.

Well said, sir.

I can do nothing but concur.

So you believe that

the vote should be restricted to white male landowners?
That was the original constitutional requirement.

I suggest that Mr. Fox and Mr. Tester read some history

before lamenting the awful effects of the "progressive century." It's fair to say that the period 1900-2012 saw the greatest increase in overall human well-being and, yes, freedom, than all previous centuries combined, at least in the developed world. The developing world still has a way to go but they are catching up fast.

Look into Upton Sinclair's The Jungle or research the Triangle Shirtwaist fire to see what "freedom" meant to American workers before the reforms of the twentieth century. Half of the population (women) couldn't vote and a good portion of the non-white male population, while able to vote on paper, were barred in practice. Life expectancy for men in 1900 wa 46 years; for women it was 48 years. In 2012, it was 76 for men and 80 for women; this is thanks in part to concerted government action against formerly dread diseases like polio and tuberculosis . I could go on, but I think I've made my point.

Something Else

And this just occurred to me, but would set limits on tenure for Justices open up possible corruption? I mean that if Justices serve until near the end of their lives, we don't worry too much about their post-Justice career. Wouldn't that change with set limits? Right now there is a huge push for former legislators to move into lobbying and soft corporate positions. What kind of benefits would be open to someone as powerful as a former Supreme Court Justice? And would their be temptation for a last year Justice to rule favorably for a hoped for future employer?

Interesting observation!

Are the contacts that justices make as valuable commercially as the ones that legislators make?

The Progressive desire to perfect the public?

Why are we supposed to assume that words or thoughts of people more than 200 years ago when the population of the United States was 3 million, consisted of 13 states and it took six weeks to sail to England have any relevance or bearing on anything today? Anyway, even the supposed followers of "Originalism" in the Supreme Court don't actually believe it or practice it. Originalism is just a pretext to inject one's own political prejudices into a decision. Cf. Any opinion by Scalia.

Creatures of habit - Supremes in black habits...trompe l' oeil?

Let's assume our long term judges have a 'Senior Moment' and forgot whom they represent; which party endorsed their place on the bench...instead these' grumpy' elders in black threw out the whole compromised legislation and 'suggest' congress get busy and reform Health Care with Medicare-For -All; single payer plan but...one that reinvests the patient's visits; with a percentage of reinvestment, of what is determined such care actuates in dollars ?

Yup...April fool!

A wee bit more fantasy:
In other words we as citizens every time we use the clinic or hospital care program, establish an invested return of what the government pays out for our care. We invest in ourselves which leads to less expensive health plan that rewards a system that rewards profit to the patient by reinvestment which could indirectly eventually lower patient and government care costs?

Socialized but not Socialism if we are a part of the profit which then goes back into the system to either lower individual costs,or by being returned into the health care program ? Either/or?

Bypass the enormous profit that feeds the medical industrial complex?

So much for April Fools Day ...however thanks for a great history lesson Mr Black

The important thing to

The important thing to remember is that what you are arguing is economics, which constitutionally is a side issue, and what the real debate is about is whether allowing this law sets a precedent expanding the government's power to restrict individual liberty, i.e. going from regulating commerce to dictating commerce. The justices, including the liberal ones, are not about to give the government the power to dictate what and when we buy things in general.

The inability to draw a sharp line delineating healthcare from food, recreation, habitation, and many other commercial areas is what is going to kill this law. To understand this case, you've got to stop thinking about the constitution like an economist and start thinking like a lawyer.

Interestingly enough

Government has been allowed to meddle in all of those areas that you claim require a bright line to define them separately from health care (which should actually be health insurance). Our food supply and prices are heavily regulated to provide a stability, and have been for many years. In fact, the government has an incredibly heavy hand in the food sector. There's very little call for deregulation of the food supply and prices, and I doubt that the Supreme Court would deign to even hear such a call, let alone rule them unconstitutional.

Habitation is a necessity akin to food and health care (much unlike recreation). Our government is heavily involved in that. There are safety regulations and building codes. There is a base interest rate. There are mortgage laws and inheritance laws. There are protections in place that (try) to keep you from losing your home even if you lose everything else. There are even programs that help you afford your home. No one is asking the Supreme Court to rule all of those things unconstitutional.

Recreation is not a necessity, so probably has the least regulation of all. But, since you brought it up, the regulation in place has directly benefitted those enterprises that make money off it. After all, without public parks (national and state), much of the land we can enjoy would be privately owned and probably little used for recreation on a broad basis. As such, boat and ski manufacturers, campground equipment makers, hotel and rental vehicle owners, etc. CAN make money. Further, there are regulations related to where and how you can place recreational buildings, use recreational vehicles, and run recreational facilities. I don't think that the Supreme Court would rule our national and state parks as unconstitutional.

As you can see, the Supreme Court would likely never touch much of the regulations put in place on the various industries in this country. And when they did hear them (mostly in the realm of food production regulation), the Supreme Court gave the thumbs up. Thus, it would seem truly at odds for the Supreme Court to rule the individual mandate unconstitutional, and the only real reason that they would is because it's a POLITICAL issue, not a constitutional issue. It seems, at least lately, that they can justify almost any ridiculous decision by twisting the Constitution into pretzels. We'll see how creative they get on this one.

Part of what argues against

Part of what argues against the government case is the fact that universal coverage, catastrophic or otherwise, does not require any such mandate. The government can simply provide that coverage, using revenues raised with whichever constitutional means are chosen.

The problem with the law breaking fresh constitutional ground is that, constitutionally, it IS all or nothing. Either the commerce clause allows this type of power grab or it does not. The size or cost of the mandate, or the goodness or badness of the government's actions, are irrelevant. There is no clear delineation of healthcare from other forms of commerce because none is possible, and there is no constitutional reason why there should be such a delineation allowed in any case (it's really really really important isn't a sound constitutional reason).

I think every American should receive a tax credit for purchased health care, paid for with a consumption tax. I think pricing should depend on age only, not health, sex, or genetic signature. This could have been accomplished in so many different ways, and instead they chose to have a mandate to hide the real costs. Now we have to start again, which is tragic, but you can't throw away the constitution just because your legislators can't legislate.