An American lesson in Court reporting

For three days in the last week of March, the United States Supreme Court heard arguments on the Affordable Care Act. No Federal law in the U.S. in recent memory has aroused such bitter controversy. If it is struck down as unconstitutional, President Barack Obama's prestige will suffer. He is due for re-election in November. Very many think the court will rule against him in June.

The core of the law is its “mandate” requiring most Americans to buy health insurance. It is central to mending the broken health care system which leaves 50 million people uninsured and accounts for 17.6 per cent of the national economy. The burden of health care of the uninsured is passed on to the state, i.e., the taxpayer.

Highly politicised

The court is highly politicised as its ruling on the “election” of George W. Bush in 2000 proved. Four conservatives, Chief Justice John Roberts Jr., Antonin Scalia, Samuel Alito Jr., and Clarence Thomas, will not even buy a car that can turn left. A Reagan appointee, Justice Anthony M. Kennedy, tips the balance when these four differ with the liberal four.

Court proceedings in the matter were fully reported. Americans would not have put up with the absurd edict of Justice J.S. Verma that individual judges were not to be identified. Remarks during the hearing, he had said, were to be attributed to “the bench” as if they spoke spontaneously in unison. Nor was that all. The American press felt free to comment on the trend and criticise the judges even while the case was being heard. Today, it continues to speculate on the outcome while the judgments are under preparation.

The New York Times took the lead. An editorial, reproduced in its foreign edition, the International Herald Tribune (29 March), remarked that the conservative judges' questions suggest that “they have adopted the language and approach of the insurance mandate's challenges”. The newspaper criticised Justice Scalia for asking Solicitor-General Donald Verilli Jr. whether a law can compel people to buy broccoli. “Failure to buy broccoli does not push that cost to others in the system”. Neglect of health insurance passes the burden to the taxpayers.

In an article entitled “Broccoli and bad faith” (31 March) the Nobel Laureate, Paul Krugman, really went after the judge. “Given the stakes, one might have expected all the court's members to be very careful in speaking about both health care realities and legal precedents. In reality, however, the second day of hearings suggested that the justices most hostile to the law don't understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as anti-reform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform.”

He concluded: “We don't know how this will go. But it's hard not to feel a sense of foreboding — and to worry that the nation's already badly damaged faith in the Supreme Court's ability to stand above politics is about to take another severe hit.”

Professor Krugman's column challenged both the judges' competence and integrity.

He was not hauled up for charging the mortals with bias and, worse, bad faith. The Times' editorial “The Roberts Court” had a sub-heading “Will the U.S. Supreme Court's ruling in the health care case expunge judicial restraint from legal conservatism?” It answered: “Republican administrations, spurred by conservative interests groups since the 1980s, handpicked each of the conservative justices to reshape or strike down law that fails to reflect conservative political ideology.”

Justice Scalia shamelessly descended into the political arena of a Senate vote count. “You can't repeal the rest of the Act because you're not going to get 60 votes in the Senate to repeal the rest.” Justice Stephen Breyer said firmly: “I would stay out of politics. That's for Congress, not us.” The NYT concluded, “A split court striking down the Act will be declaring itself virtually unfettered by the law. And if that happens along party lines, with five Republican-appointed justices supporting the challenge led by 26 Republican governors, the Court will mark itself as driven by politics.”

Trust Maureen Dowd to give the judges their just deserts. She wrote: “Justice John Roberts Jr.'s benign beige façade is deceiving; he's a crimson partisan, simply more cloaked than the ideologically rigid and often venomous (sic.) Scalia. Justice Scalia voted to bypass democracy and crown W [i.e. George W. Bush] President, so he expressed ennui at the idea that, even if parts of the health care law are struck down, some provisions could be saved: ‘You really want us to go through these 2,700 pages?' he asked, adding: ‘Is this not totally unrealistic?'

“Inexplicably mute 20 years after he lied his way onto the court, Clarence Thomas didn't ask a single question during oral arguments for one of the biggest cases in the court's history.”

Calling Justice Alito “insufferable”, Ms Dowd remarked, “The majority's political motives are as naked as a strip-search”. She has not been hauled up for contempt of Court, either. Nor was Paul Begala for his article in Newsweek of 9 April entitled “Supreme Arrogance: Five Justices put our lives on the line”.

He wrote: “My fellow Americans, your health care is now in the hands of the right-wing majority of the Supreme Court. These are the folks who disgraced themselves in Bush v. Gore and who auctioned off democracy in the Citizens United decision (on election finance). You thought it was bad when Congress and insurance companies were making health-care policy? Wait till you see what five Republican lawyers can do.

“The oral arguments in the Affordable Care Act give us very little reason to have faith in the wisdom of the court. Some of the justices came off as smug, arrogant and frighteningly detached from the realities of everyday life in America.”

No judge in the U.S. or the U.K. would dream of framing guidelines for the press to obey. If any did, the press would simply disobey. There is a formidable case law on bringing to book anyone whose comments prejudice the fairness of a criminal trial. The wheel need not be reinvented.

For the rest, the ruling of the U.S. Supreme Court in 1974 in Miami Herald Publishing Co. vs Tornillo (418 U.S. 241) is very apt. It did not concern fairness of comment but a law imposing the basic duty to publish a reply to criticism. Speaking for a unanimous Court, Chief Justice Warner Burger ruled, “A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”

'Not a public utility'

Justice Byron White remarked, “A newspaper or magazine is not a public utility subject to ‘reasonable' governmental regulation in matters affecting the exercise of journalistic judgment… Of course, the press is not always accurate, or even responsible, and may not present full and fair debate on important public issues. …government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom floor”. Even conduct of “free and fair elections” does not justify curbs. None can “dictate to the press the contents of its news columns or the slant of its editorials” — whether by Congressional laws or judicial “guidelines”. If men elected by the people to make laws cannot legislate press responsibility, still less can unelected judges who have no right to legislate.

(A.G. Noorani is an advocate, Supreme Court of India, and a leading constitutional expert. His latest book, Article 370: A Constitutional History of Jammu and Kashmir, was published by Oxford University Press in 2011.)