Dear Justice Roberts:
I have been very cynical about the Supreme Court since the election decision of 2000. I have described your court and recent predecessors as a low point in the history of the institution, when politics and sophistry dominate over clarity and problem-solving, and have especially been very disturbed that two of the justices, Scalia and Thomas, participate openly in Koch Brothers events, and then write predictable opinions advancing the interests of billionaires. I continue to think the Court did stunning damage to American democracy with Citizens United.
Three years ago, I was thrilled when you upheld the Affordable Care Act, and I am writing you this open letter now to thank you and the Court for again doing so in the case of King v. Burwell that came down this week. Most of the litigation in which I take an interest does not affect me intimately; in 2003, I filed an amicus brief in the Padilla case, though I hope there is little chance in my lifetime I will be "disappeared" into a Navy brig or Guantanamo. A couple years back, I filed another amicus in the Proposition 8 case, though I am already married to a woman and not personally seeking the right to marry a man.
The Affordable Care Act cases have always been different. I have been self employed for about half my working life. In the '80's, as I launched a law practice soon after law school, I was able within a few years to buy coverage for myself and two employees through the group plan offered by the National Federation of Independent Businesses--ironically, the plaintiff which tried to kill the ACA in the earlier litigation. About five years ago, when I again became a self employed litigator, I took the COBRA extension on the health insurance from my last full time job (as an emergency medical technician on New York City ambulances; I haven't had a very linear career). As that insurance, for which I remember paying about $600 a month, began to run out, the company offered me a replacement solo plan for something like $3500. I immediately thought of the National Federation of Independent Businesses--but they no longer wrote New York coverage. I was now old enough for AARP--but discovered that they too didn't offer primary New York coverage. There was a period of some months when I was facing a choice: stay in New York uninsured, or uproot myself and my wife and move to Texas or Florida in order to stay insured.
Literally at the last moment, I became aware of a theater industry nonprofit which offered a group plan for which I was eligible merely by showing proof that I had produced plays (which I had). That was my insurance until the ACA came along. It cost me more than $700 a month (for myself alone, my wife is a bit older and had Medicare already). It was not great coverage, as I discovered when I spent four nights in the hospital for an infection: the entire stay cost $20,000, of which I was expected to pay $4,000. That's an amount few people I know would be able to cover, and there was no cap to it. If I'd had to spend three months in the hospital, my share would have been $100,000. From a 5000 foot viewpoint what is the social value of insurance that does not prevent you from being bankrupted and destroyed? This is the problem the ACA was intended to solve.
I am an ACA success story. I am not saying that the road was smooth. The ACA's requirement that a plan sponsor make some contribution to premiums caused my theater nonprofit (and every other similar group which can't afford to contribute) to discontinue its plan. President Obama's promise that, if you like your insurance, you'll keep it, was wrong, and he should have known it was wrong, because he needed me and everyone else in the new pools to keep premiums down. I think the ACA should have made some provision for group plans like mine. I made more than thirty attempts to use the buggy New York exchange before I was able to buy new coverage. But the final outcome was that I was able to stay with the same insurer, (HIP Emblemhealth), keep my doctors, pay $70 less per month, AND (wait for it) I now have a $500 cap on hospitalization. So if I am ever in the hospital for three months, instead of owing $100,000, I will owe $500.
The frenetic dishonesty about the ACA has put me into a deep depression about the prospects for American democracy. All that crap about "death panels" when private insurers looking for excuses to drop coverage on cancer patients had previously acted as executioners ("You never filled out that survey we sent you five years ago!") With no sense of irony, while the ACA controversy was brewing, some red state decided to stop paying for dialysis for indigent people, and some of the former beneficiaries died as a result. As I write this, I am reading about Andrew Jackson, who came to power by creating nonexistent scandals and controversies during the John Quincy Adams administration, superintended by his friend William Lewis, a precursor of Karl Rove. Solving problems became much less important than who was president. I think America took a terribly wrong turn onto a course that continues today. Last year, I visited a right wing blog run by an attorney, which purported to study politics and morals, and began by inviting the people there to reason with me about the ACA. I was told I was a liar and probably a paid Obama operative, that my new coverage could not possibly be better and less expensive than what I had before. I was insulted in every way, threatened with physical harm and finally blocked by the blogger. This is evocative of the degraded state of public discussion in America today. We have slipped very far from the Greek concept of parrhesia, openness and franchise in public discussions.
The most stunning lie told by the right, and one that no intelligent proponent could possibly believe, is that the ACA interferes with a "liberty" interest. No one who asserts a right not to pay for insurance ever raises the issue of what happens when you are hit by a car or have a heart attack and arrive at the ER. The only consistent, intellectually respectable position would be to assert a right not to participate in the hospital system. A true and thoughful libertarian would understand that a right not to pay for coverage implies a similar right of the emergency room to turn you away if you can't pay. The intellectual bankruptcy of the liberty interest crowd is that they assume that, without coverage, they will still receive treatment at the ER--at my expense and yours. This in fact presumes a lack of liberty on the part of the doctors who are forced to provide treatment for which they will never be compensated--not an abstract issue in New York City, where we lost St. Vincents' and many other hospitals in just ten years because nobody was paying for trauma care.
So the right yammering about liberty has at all times simply been encouraging free riders. This is so obvious and unanswerable that whenever I posed it on that blog, people changed the subject, screamed, insulted my ancestry, and threatened me with violence.
There is a theory that says that the reason great apes have not developed language is not because they are too stupid, but that they are wired not to trust each other enough. Apes form coalitions, are capable of altruism, and invent and use simple tools. They also deceive one another for personal advantage about food and predators. Language can't form in an environment where its major use would be to tell lies, because without a basis of trust, if we each automatically disbelieved everything everyone else said, language could not possibly be an "Evolutionary Successful Strategy", and it would have no reason to exist. In other words, the existence and continuation of language is based on the proposition that most of what everyone says to everyone else will be truth.
We have all had the experience of meeting people whose language, we came to understand, carried no more reliable content than the howling of wind or the crashing of waves. (Less, arguably.) This is how I see the raving anti-ACA crowd. Here I stand with good, affordable insurance, still four years too young for Medicare. If I didn't have ACA coverage as a self employed person, chances were always good I wouldn't have any and would be a burden on society (the theater nonprofit was a fluke, a pure stroke of luck, and unavailable to the vast majority of the population who have never produced a play). Its very strange to live on the ground, know your own circumstances, know that in the reality of your life 1+1=2, and hear politicians at the national level claim you don't exist or that you are wrong about your own life.
If these people were parrhesiastes, Athenian truthtellers, here's how they could oppose the ACA honestly. They would have to admit the status quo and then argue that it is desirable and morally acceptable. They could say that the suffering of millions of people with no coverage, or inadequate coverage, is the way of the world, that the loss of St. Vincents is just the invisible hand at work, that it is not the role of government to create equality where none exists, that (in a famous Jefferson trope we now know he plagiarized) the destiny of the majority has always been to be saddled and ridden by a favored few born booted and spurred. There have at all times been a few honest conservatives out there willing to say this. But the rest just churn a lot of bullshit, calculated to persuade middle and working class people to vote against their own health care, mortgages, jobs and even against their own right to vote.
Anyway: I just finished reading the opinion you signed in King v. Burwell, and I compliment you for achieving something I thought the Supreme Court could no longer do, and that is to find the intersection of compassion and logic. The simple heart of the controversy was whether a gross typographical error in the ACA should be interpreted to mean that anyone signing up for coverage through the federal exchange should be denied federal subsidies. If Congress intended this result, it built in to the ACA an option for red states, by refusing to build exchanges, to ensure that their own citizens could not receive benefits, would not be able to afford insurance and would drop out of the system. This would then have a ripple effect as the size of the national pool dwindled and everyone's premiums went up. (Since I bought coverage on the New York exchange and receive no subsidy, I would have been one of those affected by the ripple, not immediately.) Why pass the ACA at all with a clause which would bring about its destruction? Then, as a matter of common sense and compassion, the people who voted for the ACA are alive and well and vocal, and are unanimous this isn't what they meant to do. The plaintiffs in the case you just decided, and the forces of the Republican Party backing them, were appallingly trying to win political victory by depriving millions who had already bought subsidized ACA coverage of their insurance. Talk about your death panels.
Congratulations, Justice Roberts, on functioning as a parrhesiastes (this seems to be the role into which you have now settled across other controversies as well). The saddest element of this whole mess has been that if we had a normal political process, Congress would simply have quietly fixed the typo. Instead, we've had years of hype, lies, distortions and litigation. Billions of dollars wasted. Your decision, which is elegant and short--truthful material tends to be shorter and clearer than the bullshit and lies--ends with the following statement which tolls like a bell: "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them".
By contrast, Justice Scalia's dissent reminds me of an old truism I learned when I was a young attorney, that people who don't have the law or facts on their side bang on the table and shout. His sarcasm substitutes for logic: he uses phrases like "jiggery-poky" and sometimes becomes completely incoherent ("(Impossible possibility, thy name is an opinion on the Affordable Care Act!". Huh?) I noticed years ago that Scalia aggressively asserts things he is too intelligent to believe (he once claimed that no innocent person has ever been executed in the history of the American death penalty). In his dissent here, he remarkably, ignoring actual Congresspeople still alive and vocal, postulates a putative Congress which intended the plain meaning of the typographical error, to deny federal benefits to anyone who used a federal exchange.
I know that one person's parrhesia is another's sophistry, but really. I think a Martian reviewer with no earthy political predispositions would be able to tell that the majority opinion is logical and fair and has heart, and that the dissent is deeply dishonest and makes no sense. Thank you for taking a stand on the right side of this issue and of history and for letting me and millions like me continue to have health coverage.