Best American Magazine Writing 2013

by The American Society of Magazine Editors

  Given that line-up of future cases, the five conservatives may want to keep their powder dry for now. I think they will. A poll released this week by the American Bar Association agrees, saying that most court watchers (85 percent) believe Obamacare will survive. And why is that? Not just the fact that—as I’ve said at the outset—the law is constitutional, well within the boundaries of Congress’s Commerce Clause authority. It’s because for the court to strike it down, the justices would have to pick a fight that wasn’t theirs in the first place.

  The challenges to Obama’s health-care initiative didn’t begin in the conservative legal academy. They didn’t even really blossom in the conservative legal media or think tanks. The real energy of these challenges arose out of those Tea Party town halls throughout the summer of 2010, in response to a longing to return to constitutional values, states’ rights, and ideas of individual liberty that have been dead for almost a century. That isn’t to dismiss the validity of the passionate public opposition to this law, or even to denigrate the truly heroic efforts of Randy Barnett, the Cato Institute, or the millions of Americans who deeply believe that this is a case about liberty, broccoli, and the short hop from the individual mandate to federal tyranny. It’s simply to say that it’s no accident that these cases were filed by state attorneys general and governors swept up in political currents, willing to make novel arguments in the form of what was always a constitutional Hail Mary pass. It’s no accident that until the lower district courts started striking down the act, none of the challengers really believed that they could succeed. And it’s no accident that three of the most influential and well-respected conservative jurists in the land have ruled that of course the law is constitutional, even if they hate it as a policy matter. It’s no accident, either, that Charles Fried, Reagan’s solicitor general and Harvard conservative legend, said in an interview with Dan Rather Reports this week the case would be decided 8–1—in favor of the law. The conservative legal elites don’t believe in the merits of this challenge, even if the public does.

  Next week’s health-care cases rocketed up from the district courts to the Supreme Court in less than two years, such that we are all still feeling the whiplash. Even so, they may in the end be too late. The political momentum that lit the visceral public fire under these challenges has already begun to falter. The Tea Party has plummeted in the polls. Ideas about getting back to the “Framers’ constitution” seem to have stalled with Michele Bachmann’s confusion of what the Framers really believed. The economic crisis has largely displaced the constitutional crisis that marked the 2010 election cycle. And the American public has started to see the tangible benefits of the law; a gradual process of understanding that this is less about mandating what we eat or buy and more about the (deeply conservative) notion that nobody should benefit from a system into which they are not willing to pay.

  That brings me full circle to the court’s five conservatives. Is it possible that they are sufficiently ideological and political that the grim joy of sticking it to the president and the Congress will lead them to strike down the law? Of course. But is it also possible that unlike Sandra Day O’Connor and William H. Rehnquist—who represented the high-water mark of states’ rights activism at the Rehnquist court, the two new justices, Samuel Alito and John Roberts, cut their teeth on Ed Meese’s conservatism instead. They were raised on Reagan-era opposition to abortion and affirmative action, to the perceived indignities of the Voting Rights Act, and objections to the wall erected between church and state. Those are the fights to which these men dedicated themselves as young lawyers. They didn’t join the Reagan administration to return to the glory days before the court expanded the reach of the Commerce Clause to include even wheat grown for personal consumption in the 1942 case of Wickard v. Filburn. (Wickard: “When men were men and the wheat was scared.”)

  That’s why the current fuss being made over the health-care cases has offered the court a perfect cover story. They will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And then the justices will vote 6–3 or 7–2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market. No mandatory gym memberships or forced broccoli consumption. And then—having been hailed as the John Marshall of the twenty-first century—he will proceed to oversee two years during which the remainder of the Warren Court revolution will be sent through the wood chipper.

  Looked at on the merits, the Affordable Care Act isn’t the “case of the century.” It probably isn’t even the “case of 2012.” Next week we will all be glued to the political spectacle. But stay tuned. The real action in Roberts’s court has yet to come.

  The Supreme Court’s Dark Vision of Freedom

  The fight over Obamacare is about freedom. That’s what we’ve been told since these lawsuits were filed two years ago, and that’s what we heard both inside and outside the Supreme Court this morning. That’s what Michele Bachmann and Rick Santorum have been saying for months. Even people who support President Obama’s signature legislative achievement would agree that this debate is all about freedom—the freedom to never be one medical emergency away from economic ruin. What we have been waiting to hear is how members of the Supreme Court—especially the conservative majority—define that freedom. This morning, as the justices pondered whether the individual mandate—that part of the Affordable Care Act that requires most Americans to purchase health insurance or pay a penalty—is constitutional, we got a window into the freedom some of the justices long for. And it is a dark, dark place.

  It’s always a bit strange to hear people with government-funded single-payer health plans describe the need for other Americans to be free from health insurance. But after the aggressive battery of questions from the court’s conservatives this morning, it’s clear that we can only be truly free when the young are released from the obligation to subsidize the old and the ailing. Justice Samuel Alito appears to be particularly concerned about the young, healthy person who “on average consumes about $854 in health services each year” being saddled with helping pay for the sick or infirm—even though, one day that will describe all of us. Or as Justice Antonin Scalia later puts it: “These people are not stupid. They’re going to buy insurance later. They’re young and need the money now.” (Does this mean that if you are young and you pay for insurance, Scalia finds you “stupid”?)

  Freedom also seems to mean freedom from the obligation to treat those who show up at hospitals without health insurance, even if it means letting them bleed out on the curb. When Solicitor General Donald Verrilli tries to explain to Justice Scalia that the health-care market is unique because “getting health-care service … [is] a result of the social norms to which we’ve obligated ourselves so that people get health care.” Scalia’s response is a curt: “Well, don’t obligate yourself to that.”

  Freedom is the freedom not to rescue. Justice Kennedy explains “the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.”

  Freedom is to be free from the telephone. Verrilli explains that “telephone rates in this country for a century were set via the exercise of the commerce power in a way in which some people paid rates that were much higher than their costs in order to subsidize.” To which Justice Scalia is again ready with a quick retort: “Only if you make phone calls.” Verrilli tries to point out that “to live in the modern world, everybody needs
a telephone,” but that assumes facts not in evidence.

  Freedom is the freedom not to join a gym, not to be forced to eat broccoli. It’s the freedom not to be compelled to buy wheat or milk. And it’s the freedom to purchase your health insurance only at the “point of consumption”—i.e., when you’re being medevaced to the ICU (assuming you have the cash).

  Some of the members of the court find this notion of freedom troubling. Justice Ruth Bader Ginsburg notes that: “Congress, in the thirties, saw a real problem of people needing to have old age and survivor’s insurance. And, yes, they did it through a tax, but they said everybody has got to be in it because if we don’t have the healthy in it, there’s not going to be the money to pay for the ones who become old or disabled or widowed. So, they required everyone to contribute. There was a big fuss about that in the beginning because a lot of people said—maybe some people still do today—I could do much better if the government left me alone. I’d go into the private market, I’d buy an annuity, I’d make a great investment, and they’re forcing me to paying for this Social Security that I don’t want. But that’s constitutional.”

  Justice Sonia Sotomayor invokes government tax credits for “solar-powered homes and fuel-efficient cars.” Paul Clement, representing the twenty-six states challenging the health-care law, replies to explain how the Framers would have thought about taxing carriages. The analogy of taxing carriages probably makes perfect sense to the court’s conservatives, who likened GPS devices to tiny constables in this year’s GPS case. We seem to be talking across the centuries once again in this room, and the days of leeches are looking pretty darn dreamy for some. Sotomayor says, “There is government compulsion in almost every economic decision because the government regulates so much. It’s a condition of life.” But one gets the sense that not everyone acknowledges the reality of that life, much less approves of it.

  Sotomayor, again pondering whether hospitals could simply turn away the uninsured, finally asks: “What percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn’t have insurance—do you think there’s a large percentage of the American population who would stand for the death of that child if they had an allergic reaction and a simple shot would have saved the child?”

  But we seem to want to be free from that obligation as well. This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

  Where Is the Liberal Outrage?

  Depending on whether you generally prefer your vitriolic abuse from the left or the right, it’s been a tough week for Chief Justice John Roberts. Having given conservatives the sun, the moon, and the stars for seven years, Roberts suddenly finds himself on the wrong side of everyone from the Washington Post’s Marc Thiessen, to the Wall Street Journal’s John Yoo, to presidential hopeful Mitt Romney, who not only returned the chief justice’s class ring and football jacket yesterday but also vowed to only date future justices who are, well, a carbon copy of Mitt Romney.

  In contrast to all the weeping and wailing that has accompanied what appears to be John Roberts’s single significant defection since joining the court, liberals have been strangely silent—as they are always strangely silent—about the myriad ways in which the liberal justices have disappointed them this term. Oh sure, we get a little eye-roll from Elizabeth Warren over Justice Elena Kagan’s vote in the Medicaid expansion part of the Affordable Care Act cases. But looked at in its entirety, the 2011 term was yet another festival of defections by assorted members of the so-called liberal wing.

  Think about it: The court’s liberals voted to find a ministerial exception to employment discrimination laws for religious schools and churches; ruled against the EPA in a wetlands case; and, as Adam Liptak points out, the court’s liberals pretty much crushed the Obama administration again this term. Yet you don’t find liberals burning their Stephen Breyer Pokémon cards, in part because liberals don’t have Stephen Breyer Pokémon cards in the first place. We can’t really be bothered.

  Yesterday at Politico, Josh Gerstein wondered why the left had ignored Kagan, the liberal “turncoat,” and her massive defection on the Medicaid expansion. He singles out Kagan—as opposed to Justice Breyer, who also voted with the conservatives on the Medicaid issue—because everyone always assumed Kagan was in the tank for the Obama administration. Or as Gerstein put it, “The absence of public outrage toward Kagan is particularly notable since she wasn’t parting company just with her liberal ideological counterparts, but with the president who appointed her to the court and with the administration she served as Solicitor General immediately prior to taking the bench.” Gerstein proposes several explanations for the left’s silence on Kagan, including the fact that her Medicaid vote may ultimately have limited practical impact and that liberals are giving her a pass for a possibly strategic decision to trade her Medicaid vote for Roberts’s vote on the individual mandate. I don’t think any of his conclusions are wrong, but I do think they paint only part of the picture.

  The truth is that liberals have been forgiving the liberal justices their defections for decades. The notion of liberal commentators rising up en masse with threats to impeach and impale a justice for a single decision, as conservatives have done with Justice Anthony Kennedy, Justice Sandra Day O’Connor, and now Chief Justice Roberts, is beyond imagining. When Justice John Paul Stevens voted with the court’s conservatives on upholding a voter ID requirement a few years back—indeed, Stevens went so far as to write the opinion—liberals just chalked it up to his jaunty bow tie.

  Why is that? For one thing, the court’s left wing has always been more fractured than the right, and the sense that the four liberals should be acting in perfect lockstep has never really gained any force on the left. Again this term, the pairs that agreed most frequently were Alito and Roberts, and Thomas and Scalia. The court’s liberals tend to be more inclined to flop around, so much so that it no longer surprises anyone when it happens in a single case. For another thing, conservative commentators are quick to use even one-off defections by the conservative justices as ammunition for the next confirmation fight. See for instance Thiessen and Yoo arguing that the real lesson of the ACA challenges is that the next nominee will need to be both further to the right than John Roberts and also far more thoroughly vetted. This isn’t about the right’s anger at Roberts so much as a warning shot about the next justice to be named. Liberals don’t think that way about the court, much less talk that way out loud.

  The relative silence from the left also betrays a longstanding confusion from the left about what precisely it expects from a liberal justice. The fact is that conservative constitutional thought is so much more crisply expressed, and so much more broadly accepted, than liberal thought—an argument expressed forcefully today in the New York Times by Professor William E. Forbath of the University of Texas. He explains that there is a long tradition of liberal counter-argument to the laissez-faire constitutional vision put forth by the court’s five conservatives. Sadly, he says, “liberals have largely forgotten how to think, talk and fight along these lines.” In other words, it’s much harder to break up with your justice for doing something you dislike if you have no idea what you wanted him to do in the first place.

  One wants to be careful what one
wishes for here: The day candidate Obama tells the mainstream media that he would never confirm a justice to the Supreme Court that disagrees with him about anything, ever, I’d start to feel very, very nervous about the meaning of an independent judiciary. And certainly, the idea that liberals are a little bit more, well, liberal in the bandwidth they’ve created for acceptable judicial behavior cannot be called a bad thing. But instead of smugly chuckling at the ways conservatives have turned on their chief justice this week, liberals might also want to take a page from their playbook. The courts matter. How we talk about the courts matters. And who is on the courts matters as well. John Roberts’s critics may be unreasonably vengeful this week. But the alternative to their unbending vision of judicial good behavior is to have a compelling competing vision as opposed to the fuzzy conviction that being lucky will always be enough.

  Texas Monthly

  WINNER—FEATURE WRITING INCORPORATING PROFILE WRITING

  The National Magazine Award judges described this twenty-five-year saga of a man falsely imprisoned for the murder of his wife as “a true-crime story, a human drama, an argument for legal reform—and a vivid reminder of the enduring power of magazine storytelling.” Pamela Colloff was already familiar to the judges—two of her stories had been nominated in previous years, 2001 and 2011, and her article “Hannah and Andrew,” about a Texas homemaker found guilty of murdering her five-year-old foster son by force-feeding him salt, was also a finalist in Reporting this year—but this was the first time her work for Texas Monthly, where she is executive editor, won an award. The explanation is easy: this is long-form journalism at its finest.