New York Times Room for Debate: Is the Court being Thoughtful or Partisan?

Question for debate:

While a political furor has surrounded the 2010health care overhaul, many have said the legal issues the Supreme Court will consider this week when it hears arguments about the law have never been widely disputed. Congress’s power to regulate interstate commerce, the legal foundation for the law’s requirement that all people get health insurance, has been settled law for 70 years. And no lower appellate court has ruled against the law’s expansion of Medicaid coverage. Yet the court has scheduled three days of arguments of these and other issues.

Are the justices giving due consideration to a complicated legal dispute, or preparing to engage in “judicial activism” to reduce federal power?

Response: Judges With a Clear Agenda

Patricia J. Williams is the James L. Dohr Professor of Law at Columbia University. She writes the column “Diary of a Mad Law Professor,” which appears monthly in The Nation.

UPDATED MARCH 26, 2012, 10:56 AM

In the face of seven decades of precedent, the Supreme Court’s grant of certiori to six cases attacking the constitutionality of the Affordable Care Act is an astonishing display of judicial activism. The decision to do so seems alarmingly consistent with the extremist philosophy of Clarence Thomas, who flatly does not believe in stare decisis. That the federal government’s power to regulate commerce is even being questioned is virtually inexplicable as a legal matter: the law deals with the $2.7 trillion health insurance industry, in a country in which 62 percent of all bankruptcies are occasioned by medical debt.

As political theater, however, the motivation becomes clearer. Clarence Thomas’s wife, Virginia, has been deeply involved in organizing nationwide opposition to the health reform. She even set up her own political action committee, Liberty Central, whose Web site says that the Affordable Care Act “tramples on the Constitution.” The group encourages readers to attend rallies and fund raisers for the plaintiffs in the pending hearings, from which Clarence Thomas refuses to recuse himself.

The claimants in the present cases consist of 26 states’ attorneys general, all but one of them Republicans; the National Federation of Independent Business; the Thomas More Law Center, which touts itself as “Christianity’s answer to the A.C.L.U.”; and Jerry Falwell’s Liberty University, which revoked the status of its Democratic Club in 2009 because “The Democratic Party platform is contrary to the mission of Liberty University and to Christian doctrine.”

Yet it’s puzzling on some level. After all, conservatives rail against “free riders” all the time, so one might have expected them to be supportive of a requirement that people buy into a health care system enabling greater efficiency by cost-spreading. Indeed, the first versions of the Affordable Care Act were hatched by the conservative Heritage Foundation and shepherded into being by Mitt Romney in Massachusetts. So what’s behind the turn of heart? Alas, it goes to yet larger political stakes. Limiting the commerce clause in the fashion pressed by these appellants would also undo the legal grounding for … well, everything: the Social Security Act, unemployment insurance benefits, Medicare, the National Labor Relations Act, the Occupational and Safety Health Act, the Clean Air Act, all federal disaster relief, the Anti-Trust Act, the Equal Pay Act, and all jurisprudence related to public accommodations, including the Civil Rights Act of 1964.

That, in a nutshell, is why Supreme Court validation of the Affordable Care Act will be so important. “Judicial activism” doesn’t begin to describe the havoc if the justices decide otherwise.

For the full debate with Richard Epstein, Elizabeth Wydra, Ron Christie, Kermit Roosevelt III, James Blumstein, and Ilya Somin, please follow this link:

http://www.nytimes.com/roomfordebate/2012/03/25/on-the-health-care-law-is-the-court-being-thoughtful-or-partisan/activist-judges-with-a-clear-agenda

Join Room for Debate on Facebook and follow updates ontwitter.com/roomfordebate.

Hidden Assets

The Hidden Cost of DNA Banking

Diary of a Mad Law Professor

by PATRICIA J. WILLIAMS

This article appeared in the April 12, 2010 edition of The Nation.

March 25, 2010

In March 2009, Lily Haskell was arrested while attending an antiwar demonstration. Within hours she was released. Although she was not charged with any crime, her arrest alone was sufficient for her to be required to submit a DNA sample. The ACLU of Northern California filed a lawsuit on her behalf, challenging the constitutionality of the statute mandating police to retrieve and retain DNA from anyone arrested for a felony. As Michael Risher, Haskell’s attorney, asserted, the statute subjects innocent Californians to “a lifetime of genetic surveillance” with no judicial oversight, simply because they might have wandered into the field of suspicion of a single police officer.

The collection of DNA has mushroomed in the past five years. California has the third-largest forensic DNA database of any government entity in the world (behind Britain and the US government). All three collect DNA from arrestees regardless of guilt. All three have databases highly skewed by race and class. In Britain 42 percent of black men have had their DNA sampled and stored. Until recently, however, forensic DNA samples were retained only from convicted felons who had committed violent or sexual offenses. With very little oversight or consistency, local rules for collection in criminal cases have expanded haphazardly, often including anyone who is arrested even mistakenly. People may challenge the retention of their DNA and sue to have it expunged, but that process can take years.On March 6 of this year President Obama appeared on America’s Most Wanted to announce support for taking DNA from all arrestees, for banking that data and for keeping it without restriction even if there is no subsequent conviction. Undoubtedly it would have been much more controversial if he’d advocated DNA collection for all citizens, but his proposal seems to have slipped under the radar when framed as “only” for arrestees. By this metric “innocence” becomes a matter of degree, with certain people less innocent than others, marked by suspicion, kept on file, looked at first, disproportionately subject to the vicissitudes of laboratory and storage error. And even if mistakes are rare, it is exceedingly hard to persuade anyone of that if you are tossed in with a category the public deems inherently suspicious.

Obama and John Walsh, the host of America’s Most Wanted, endorsed the patently false idea that DNA is no different from fingerprinting. DNA samples can potentially reveal data about all kinds of other aspects of the self, including probabilities for certain health conditions, and can potentially implicate close family members. Employers and insurance companies are already hungering for DNA analysis that may allow them to refuse jobs or coverage to those with the mere hint of genetic predisposition to certain medical conditions (never mind pre-existing conditions).

In addition to the invasion of privacy, we must also weigh the possibility of technical mistakes. As a report from the National Research Council observes, “There is no uniformity in the certification of forensic practitioners, or in the accreditation of crime laboratories.” That measure of human error is never conveyed in narratives touting the perfect infallibility of DNA evidence.

Furthermore, while DNA has been vaunted as a revolutionary tool of exoneration–in ruling out suspects, in other words–it is much less precise as a mechanism of positive identification when dealing with “cold hits,” that is, attempting to match DNA fragments from a crime scene against samples stored in massive databases. Bioethicist Erin Murphy clarifies the point by comparing DNA typing to blood typing: “Imagine a murder scene at which police find a blood sample certain to belong to the killer. Crime scene technicians…show that it is type O. Later, the police find and draw blood from two suspects. One suspect is type AB; the other is type O. We can, with unreserved confidence, say that the first suspect is not the killer; but regarding the second suspect, we can only say that she is included within the class of people that includes the killer. The probability that she is the actual killer turns on how many other people have that blood type, along with any other evidence that we might be able to adduce.”

Finally, we risk sacrificing the American credo of free will: that we endeavor and achieve even when such accomplishment may be against otherwise calculated odds. DNA, for example, is being collected privately from those who submit samples for genetic ancestry tracking or from young professionals who pay thousands to outfits like 23andMe in exchange for overly deterministic pronouncements about “the gene for” this or that. This collection and storage of DNA by private means is thoroughly unregulated. The Genetic Information Nondiscrimination Act of 2008 prohibits insurers and employers from using genetic prediction in hiring or coverage, but the act is easy to circumvent. For example, every time we dispose of a coffee cup or a hangnail, that “garbage” is open to the exploitation of others, including police. Few who contract with genetic ancestry tracking or “personalized medicine” companies realize that their profit is derived both from consumers and from reselling their samples out the back door, in supposedly “anonymized” form, to research institutions and insurance companies. “Anonymized” means that names, addresses, Social Security numbers and birth dates are kept confidential. But less than 1 percent of the information that the human genome contains has been reliably decoded. The day is surely not far away when names and Social Security numbers will be quaintly unnecessary in pinpointing identity.

We are at the very beginning of a scientific revolution that will no doubt profoundly unsettle certain notions of privacy and bodily integrity. The rampant, unreflective “bio-prospecting” occurring in public law-enforcement agencies and at private-sector data-mining companies should give us pause.

Metalinguistics of The Health Debate

Reverse Nazism and the War on Universal Healthcare

Diary of a Mad Law Professor

by PATRICIA J. WILLIAMS

This article appeared in the September 14, 2009 edition of The Nation.

August 26, 2009

The spinmeisters of the right have done quite a job with what used to be straightforward English etymology. Thanks to Rush Limbaugh and Fox News, “integration” was inverted to mean “takeover” and “colorblindness” is code for abandoning the advances of the civil rights movement, which itself is synonymous with an “industry” of exclusion. It’s no surprise, then, that whenever a piece of progressive legislation comes to the table, the same manipulations come into play from right-wing pundits who shamelessly profess their desire to see the Obama presidency fail. Thus it is that America’s Affordable Health Choices Act of 2009 is being turned upside down as the neat equivalent of Germany’s Bankrupting Forced Death Act of 1939.

If you are watching the healthcare town-hall ruckuses with only common dictionary meanings in your head, you will be struck by the protesters’ general incoherence and outright nonsense, bearing no rational connection to the actual draft of the healthcare bill. As Representative Barney Frank demanded of one constituent who likened the bill to Nazism, “On what planet do you spend most of your time?”

But if you listen as though deciphering pig Latin and realize that this demographic is speaking from a well-managed, near-hypnotic looking-glass world where every word from the mouth of a Democrat (or a liberal, or a Latina, or a Canadian) is a lie, a betrayal… then it all makes sense. Their world truly has been turned inside out, by the election, by the economy, by the precarious conditions that threaten us all. But for those whose sense of identity has been premised on a raced, masculinist, conservative Christian hierarchy of American power, the world must seem even more emotionally terrifying than any actual facts would indicate.

So reversal is key to understanding what’s going on. It’s not just “lies”; it’s the expressive angst of people whose felt power relations have been turned upside down. It’s not factually accurate, but this is how they feel. Obama is Hitler! Health insurance for all means euthanasia for me! “My” country is suddenly “their” country.

Of course, there are special interests who profit from the magnification of these fears. Betsy McCaughey, a former shill for a medical instruments company, is the original source of the “death panel” rumors. From the beginning, big pharmaceutical and insurance companies, with an almost inconceivable amount of money to spend, have been muddying the waters. Think about the recent revelation that Merck secretly financed the publication of a fake medical journal that was designed to look objective but merely touted the supposed benefits of its products–and included “paid advertisements” for the company’s drugs. What is truth in such a corrupt hall of mirrors?

But what does the bill actually say? A quick summary of the most contentious point: the act would provide reimbursement if you seek medical counseling about end-of-life decisions. This option allows you to plan what you would like to have done in the case of catastrophic or terminal illness–nothing forced about it. All extraordinary measures will continue to be used to resuscitate someone whose wishes are unknown: feeding tube, intubation, cracking ribs to defibrillate, whatever it takes. By contrast, it is private, profit-motivated insurance companies–which deny coverage based on pre-existing conditions and restrict one’s choice of doctor, medical treatments and length of hospital stays (based on actuarial tables)–that bear the greatest resemblance to a mulching euthanasia machine. When nearly 50 million US citizens live without any health coverage, how on earth could a purely voluntary public option be considered throwing people under the bus?

Let me acknowledge the genuine ideological and moral misgivings behind some of the protests. Many libertarians hate anything the government does, no matter how monopolistic or quasi-governmental the power of pharmaceutical and insurance companies. But they are a minority and not generally the bloc using the language of reversal and code. Similarly, there are those with genuine moral or religious qualms: “prolifers” who, if they believe that life begins at the molecular moment of conception, could also think that any end-of-life consultation is against God’s will. This would be the same line of reasoning followed by those who wanted Congress to keep Terri Schiavo on life support no matter what. While I can certainly respect that as a belief, it is clearly even more of a minority position than libertarianism. In addition, it requires strong-armed government intrusion over the wishes of patients or family; and it is totally unsustainable as national public policy.

All of this is complicated but surely, with a bit of listening, comprehensible to the average citizen. So how do we connect the reality of our dismal life-expectancy and health-cost statistics to the hysterical sobbing of people who come to town-hall meetings furious that “the insurance companies won’t be able to make a profit”? Much of the epic woe is not about healthcare or public options. It’s about roiling resentments that need to be dressed up as something else, the coded mummery of Halloween monsters hybridized into new chimeras of hate. It’s about fear that precious resources are being transferred to “alien” others. Fear that the gains of others are ill-gotten, leaving the lonely patriot survivalist as victim, “thrown away,” trash. In these fiery monologues, even our president is figured as conspiratorially alien-birthed, from a galaxy far, far away, who’s just pretending to be one of “us.”

This morning I saw a picture of President Obama dressed as Hitler, complete with little mustache, tacked high on a tree trunk. At first it seemed jaw-droppingly ridiculous, sociopathically paranoid. But if the rule of reversal is what’s encoded in that image, all people of good will must worry that what’s really at stake for some of our gun-toting, demagogic fellow citizens is nothing less than America’s very own Weimar moment.

• Copyright © 2009 The Nation