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October 14, 2020
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It goes without saying that United States Supreme Court Justices are transcendently skilled lawyers. Indeed, there is no higher recognition of legal achievement than appointment to the Court.
But our most important Justices have gone far beyond mastering their discipline. True greatness in law also means having a singular grasp of the world in which complex principles play out. Outstanding judges also have a deep appreciation of broader social concerns and how doctrinal rulings can shape society. Law doesn’t operate in a vacuum, after all—it is a tool for formalizing social beliefs and priorities.
In our lifetimes, no one displayed this extraordinary combination of intellect and humanity more vividly than Ruth Bader Ginsburg, particularly so in the field of health policy. Like all great jurists, her writings on the Affordable Care Act reflected the law’s deeper purposes. Actually, this attention to deeper meaning is something she shared with Chief Justice John Roberts, with whom, even in disagreement, she appeared to be close. Her approach to law—as an instrument for shaping the world in which we live—is on display in the Court’s decision in King v Burwell, written by the Chief Justice. King represented an existential threat to the ACA. Had plaintiffs prevailed, residents of the 38 states that relied on the federally operated health insurance Exchange would have lost access to affordable insurance. In his majority decision, the Chief Justice began by grounding the ruling in legal doctrine, as all decisions do. But he then connected this doctrine to the situation before the Court—whether to preserve a functioning insurance system. Reminding us that a judge’s duty in reading an Act of Congress is not simply to give the “most natural reading” to a particular, isolated textual phrase but instead, to pursue an interpretation that is “compatible with the rest of the law,” the Chief Justice, as Justice Ginsburg would, reminded us that laws should be read in light of their real purpose. For this reason, rather than focusing on four words in a 987-page statute—“established by the State”—the Court placed these words in a broader context, thereby saving access to affordable insurance for all those who need it, regardless of whether the HHS Secretary has stepped in to operate any particular state Exchange. As the Court noted, the purpose of the ACA was to “improve health insurance markets, not destroy them.”
King shows us that whether the focus is on cases that courts hear daily or the rarified few that reach the Supreme Court, resolving legal disputes turns on how deeply judges can connect law to the facts as they see them. This skill separates sublime judges from those who are merely competent judges. In the end, both legal advocates and judges are expert storytellers, brilliant not only in the technical side of law but in their ability to persuade us to see the world in which law operates as they do. As Rashomon—the greatest of all the post-World War II films of Akira Kurosawa—teaches us, there is no truth, only our perception of it. The winner of a judicial dispute—be it the advocate or the writer of the Court’s majority opinion—wins the argument about how the law should operate in reality.
No one was better at this than Justice Ginsburg, even when on the losing side, and for this she will be remembered as among the finest of this nation’s 113 United States Supreme Court Justices. Her legal acumen was enormous, but her skill lay in her ability to bring doctrine and theory to bear on life’s problems. We saw this in the issues she chose to tackle as a practicing lawyer and her quest to use law to advance policies that benefit society rather than as a cudgel for the privileged few.
One never read Justice Ginsburg’s legal opinions and thought, what world does she live in? Her brilliance was in the grounding, and her achievements lay at the juncture of law and reality. She did this as a lawyer through the stories she told in her compelling sex discrimination cases. Later she did this as a health lawyer.
Justice Ginsburg’s talents were on full display in National Federation of Independent Business v Sebelius, the 2012 alpha case that established the law’s constitutionality. In her opinion, she lent her voice to the ultimate result but, at the same time, brilliantly laid out her disagreements with the Chief Justice and in doing so, displayed her deep understanding of the unparalleled role of law in enabling innovation in health policy.
Her first disagreement was with the Chief Justice’s dismissal of the Commerce Clause—arguably Congress’s most far-reaching domestic policy power—as the constitutional basis for the ACA. Her argument offers a textbook example of legal scholarship regarding the role of judicial precedent in shaping the Court’s response to new challenges, in this case, a legal innovation in the design of health insurance policy. Had the Court based its decision on Congress’s Commerce Clause powers, the ACA would have been constitutionally on safe ground. Instead, however, the Court chose to rely on Congress’s constitutional taxing powers. Now we confront the prospect of losing the ACA simply because Congress decided to reset a tax penalty to zero—an absurdly small policy change but one seized by opponents who argue that a zero tax penalty means that the law no longer qualifies as an exercise of taxing powers. Justice Ginsburg’s opinion, however, was grounded on more than the deepest legal scholarship. It also reflected her belief that, in the end, the ACA was a sensible Congressional response to a national economic crisis with life and death consequences—exactly the type of problem with which the Commerce Clause was designed to deal. By classifying a law grounded in the purchase of private insurance as an unconstitutional exercise of Commerce Clause powers, she observed, the majority effectively foreclosed Congress’s ability to seek private solutions to public problems, thereby diminishing the chances for new and fresh strategies for resolving longstanding national economic problems. Whether public/private solutions are the best policy is a matter of preference; Justice Ginsburg instead pointed out the practical consequences of the Court’s decision to foreclose certain policy directions on constitutional grounds.
Equally compelling was her remarkable critique of the majority’s unprecedented ruling that the ACA’s Medicaid expansion to virtually all low-income working age adults was unconstitutional. In an opinion that should be required reading for all health policy students, Justice Ginsburg chronicled Medicaid’s remarkable decades-long evolution—beginning with people with disabilities, and continuing with children, pregnant women, and parents and the elderly poor—as a single continuum of policy innovation related to health inequality, one of the nation’s most pressing social problems. Far from being an unconstitutional departure from legal norms, Medicaid coverage for virtually all poor adults amounted to a logical outgrowth of decades of policy reform—an evolution in thinking, not a wild idea out of left field. In expressing this view, she offered us a master class in the history of Medicaid and health policy for the poor.
For Sebelius, and for so much more, we in health policy owe an incalculable debt to a judicial hero.
 576 U.S. 988 (2015)
 567 U.S. 519 (2012)
Sara Rosenbaum is the Harold and Jane Hirsh Professor of Health Law and Policy and founding chair of the Department of Health Policy at the George Washington University School of Public Health and Health Services. She also holds professorships in the Schools of Law and Medicine and Health Sciences. A graduate of Wesleyan University and Boston University Law School, Rosenbaum has devoted her career to issues of health justice for populations who are medically underserved as a result of race, poverty, disability, or cultural exclusion. Between 1993 and 1994, Rosenbaum worked for President Clinton, where she directed the drafting of the Health Security Act and designed the Vaccines for Children program, which today provides near-universal immunization coverage to low-income and medically underserved children. Rosenbaum is the leading author of Law and the American Health Care System (Foundation Press, 2012) and has received many national awards for her work in public health policy. She is past chair of AcademyHealth and a member of the Institute of Medicine. Rosenbaum also has served on the CDC Director’s Advisory Committee and as a Commissioner on the Congressional Medicaid and CHIP Payment and Access Commission (MACPAC), which she chaired from January 2016 through the expiration of her term in April, 2017.
Jun 29, 2021
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