Historic events have a way of sneaking up on us. They often make news when they happen, but their lasting significance does not become apparent until some time has passed.
Think of those skirmishes between British troops and American militia at Lexington and Concord, Mass., in 1775. They got plenty of attention, but they might not even have led Boston’s six o’clock news if, say, a local politician had been caught distributing pictures of his underwear-clad private parts to various young women. Trouble had been brewing with the British for years. Nobody realised until much later that the shots fired that day were the first of a long war that would give birth to a new nation.
The stock market crashed on a Friday in October 1929. The panic made the front pages, just as a similar crash did in October 1987. Today we remember the crash in 1929 as the start of the Great Depression, while the 1987 event is just a footnote in financial history.
Some events, of course, are so profound, and their significance so evident, that we know immediately that they will command their place in the history books. Often we have a catch phrase. If I say “the Alamo,” “Pearl Harbor” or “9/11,” you understand immediately that I am not just talking about an old Texas fort, a Hawaiian naval base, or the 11th day of September.
The Supreme Court typically decides fewer than 100 cases a year. Every year, at least a few of those decisions are legitimate front-page news. But it usually takes time for the full impact of a ruling to emerge, often because Congress or state legislatures may or may not respond by changing the law that is being decided. Consider, for instance, Kelo v. New London, in which the court held in 2005 that a city can take private property via eminent domain and turn it over to private developers in the interest of economic progress. Some states responded by changing their laws to prohibit or limit such transactions.
Of course, there are rare occasions in which we know immediately, or even ahead of time, that a Supreme Court decision will be a blockbuster – something that will touch the life of nearly every American.
Including yesterday’s 5-4 decision to uphold the Affordable Care Act, I count a half-dozen such cases over the past 60 years or so.
The first, in 1954, was Brown v. Board of Education. I don’t have to say more about that case; if you care enough to have read this much of this column, you know what it decided. Besides, I’m giving you a hyperlink.
Nineteen years later, the court decided Roe v. Wade. Again, I need not tell you what that case decided. It was a 7-2 ruling in which one of the dissenters, Justice Byron White, foreshadowed the decades of bitter controversy over abortion rights that have followed.
My dark horse entry is 1974′s United States v. Nixon. Even a well-informed young adult might not recognise the case in which the court ruled 8-0 that President Richard Nixon had to turn over the secret tapes of his Oval Office conversations to the special prosecutor who was probing the Watergate break-in and cover-up. Those of us who remember the case may still have forgotten how quickly it was handled. The court heard arguments over Nixon’s claim of executive privilege on July 8, and it handed down its ruling on July 24. Nixon resigned two weeks later.
Then there was Bush v. Gore in 2000. Unlike the three earlier decisions, which all had strong majorities, this was a 5-4 exercise in raw voting power that decided the presidential election on such flimsy legal reasoning that the court majority itself declared that its opinion would not set a precedent. Like it or hate it, the outcome in that case changed the nation’s history, either by installing a president who would not have otherwise claimed the office, or by leading half the country to believe that its presidential choice that year was overridden by five individuals in black robes. An already rising tide of Washington partisanship soon after reached the level of an epic flood.
I’ll toss 2010′s Citizens United onto the list. It is my list, and I admit to being a First Amendment zealot. Citizens United certainly passes the instant-recognition test, because whether you agree with the 5-4 holding or not, you know what I’m talking about. But I am less certain that this decision belongs on the list than of any other case in this select group. It has been less than three years since it was decided, and despite all the fuss about the advent of corporate- (and union-) funded political advertising, I really don’t think it will change many lives. We were already awash in political exhortations. I suspect that as the decades pass, the idea of business and labour taking public positions in election campaigns is going to seem less earth-shaking than some people consider it right now.
This brings us to yesterday, when the entire country paused shortly after 10 a.m. Eastern time to await word (from a courtroom where cameras are pointlessly banned) about the future of American health care. And, for the third time in a row on my list of six cases, it was a 5-4 decision. This time, however, conservative Chief Justice John Roberts joined the court’s four liberals in declaring that it is within Congress’ powers to require all of us to have health insurance or pay a financial penalty.
Pop quiz: Can you give the name of the case? Don’t feel bad if you can’t. It’s odd, but even though I have been following and blogging about this law for years, I had no idea when I sat down to write this column that I would be discussing National Federation of Independent Business v. Sebelius. Only the law professors and students were paying attention, I suppose. But years from now, we’ll probably all remember this name along with the others on my list.
I have written often enough that I think the ACA is a bad law, but I never thought it was unconstitutional. Now that the Supreme Court has so ruled, a lot of opponents are pinning their hopes on rapid repeal.
I wouldn’t bet on that happening. Even if Mitt Romney wins the White House, and even if Republicans hold the House and take a small majority in the Senate, Democrats who support the law are likely to retain enough votes in the Senate to prevent a full repeal from happening any time soon. I think families, businesses, and state and local governments would be wise to assume that the law will be fully phased in as scheduled in 2014.
The nation’s health care tab is likely to continue spiraling upward, because the law emphasised universal coverage and gave short shrift to cost containment. Mandates that businesses provide coverage to employees are going to be made tougher – I eventually expect smaller businesses to be made subject to the mandate, along with harsher penalties – and this is going to hold down job creation. Insurance premiums will rise as individuals and families conclude that, as long as they are healthy, it is cheaper to pay the law’s penalties than to pay for the insurance that companies will be required to sell them anyway after they become sick.
Proponents will argue that the matter is settled now that the Supreme Court has spoken, and they will certainly argue that we should move on to other topics once any repeal effort has been addressed in the next Congress. This will not happen. The law’s defects, and the sharply polarised response it has drawn, have ensured that we will be talking about health care reform far into the future.
And we will also be talking about yesterday’s decision in National Federation of Independent Business v. Sebelius. It’s the sort of thing that only comes along about six times in 60 years.
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