Monday, September 12, 2011

Preface questions, ctd.

More responses to questions that incoming freshmen had during the Preface session at the beginning of the semester (Preface is JMU's program to welcome incoming freshmen and -women; it includes a first-year reading program). I asked them to leave me note cards with their questions. Here are some more answers.

Respectful and ethical minds - what's the difference?

This is a good question: the two ideas that Gardner talks about are clearly related. The respectful mind points to the habit of showing respect to people with different beliefs, traditions, perspectives, etc., while the ethical mind points to the need to "act on the basis of responsibility." Obviously, one could argue that being respectful is an ethical requirement and that these two types of mind are closely related (or the respectful mind is part of the ethical mind). Gardner wrote an entire book on his idea of different minds, so I suspect that he goes more in-depth on these types of questions.

I have to admit that I find it dangerous to over-emphasize respect. True, I think it is important that we learn to be respectful towards people with different perspectives, beliefs, opinions, ways of thinking, etc. etc. Particularly as a student of American politics, I find that the respectful mind is too little exercised in many public debates. But ridicule has its place in public discourse as well. Sometimes ridicule is more effective to expose lazy reasoning, stupidity, or bad taste. And in many dictatorships, respectful criticism is prohibited, while ridicule can often slip undetected through censorship.

I think that, when it comes to respect, the important thing is to learn when to be respectful and when to ridicule what deserves to be ridiculed. That's to a large part an aesthetic question – a question of good taste, of proportion. Interestingly, that's something that Gardner does not mention in his article.

How important is the Preface class, compared to other classes?

For me, the main importance of Preface, JMU's first-year reading and discussion program, is to prepare incoming students for their work at JMU. I suspect that the way we learn at JMU is quite different from learning in many high schools – students are expected to be more responsible for their own learning, they have to develop their own interests and pursue them, they have to understand what constitutes a good and fulfilling education and make sure they get it. Professors, librarians, and other people working with students provide many opportunities for students to learn and grow, and students have to figure out how to take those opportunities. The readings and discussion in the Preface class meeting were designed to let students reflect on what is learning, what is knowing (and not knowing), what is part of a good education, and what are the reasons for seeking an education. We hope that the readings provided students with ideas about learning that help them achieve their goals in a variety of disciplines. In this sense, the Preface class is very important, even though it may not provide any specific knowledge about particular classes that students are going to take, say, in their majors later on.

Thursday, September 08, 2011

When will the Supreme Court review the individual mandate?

(Cross-posted from Dukes and Wonks.)

While the big U.S. government story of the night is President Obama's new speech on creating jobs, I'd like to highlight another really big story that's probably going to be neglected. The U.S. Court of Appeals for the Fourth Circuit today rejected lawsuits brought by the Commonwealth of Virginia and Liberty University challenging the 2010 Health Care Reform law. Virginia and Liberty University argue that the individual mandate, which requires all U.S. residents to buy health insurance starting in 2014, is unconstitutional. (Liberty University also sued over a related provision that would impose a penalty on employers whose employees have to receive federal subsidies to buy their own insurance.) This is the third ruling in the federal courts of appeals on the law: On June 29, a Sixth Circuit decision upheld the individual mandate, and on August 12, an Eleventh Circuit panel ruled that the individual mandate was unconstitutional. Two decisions for the law, one against it. More cases are pending.

These decisions are significant, for two reasons. First, they set legal precedent for different parts of the country - the Fourth Circuit for the Mid-Atlantic, the Eleventh for part of the Deep South, and the Sixth for Michigan, Ohio, Kentucky, and Tennessee (you can find a circuit map here). Second the Supreme Court is likely to review these cases and decide for the country as a whole whether or not the health care reform law (or parts of it) are constitutional or not. And conflicting lower court decisions make it more likely that the Supreme Court hears these cases sooner rather than later. (The Supreme Court can pick and choose whether it hears most cases, and Rule 10 of the Supreme Court Rules specifically mentions a conflict between appeals court decisions as one of the reasons for which the Court may decide to decide a case.)

Some observers speculate that the Supreme Court will hear and decide one (or all) of the health care appeals during its next term, which will run from October 2011 to late Spring 2012. They point precisely to the conflicting lower court decisions. I am not completely convinced by these predictions, although they may very well turn out to be true.

I have two related reasons: First, the Supreme Court hears cases with lower court conflict because it enables it to review different legal viewpoints that have arisen out of real disputes. If all lower court decisions make similar arguments, it is more difficult for the Supreme Court justices to evaluate the merits of arguments that were none of the lower courts actually used for its decision. As a result, it makes sense for the Court to wait for other similar but undecided cases in the lower courts. Letting such cases "percolate" a bit will provide the justices with more legal material to make a sound decision, to consider the implications of the different legal arguments (and the real-life consequences of different outcomes).

Now, while it looks like the four (the Virginia and Liberty University cases are separate decisions) appeals court cases that have been decided so far represent the different sides of the case, this is not necessarily true. The Eleventh Circuit decision overturns the individual mandate as unconstitutional. But while the decisions in the Sixth and Fourth Circuits uphold the law, it is debatable whether they actually rule that the law is constitutional! This is clearest in the Virginia cases: The appellate court rejected the lawsuits on procedural grounds - it argued that the state of Virginia did not have standing (that is, the right to bring the case), and that Liberty University could not file a suit before the law had actually gone into effect. With respect to the Sixth Circuit, Lyle Denniston at SCOTUSblog makes the argument that the Sixth Circuit panel merely ruled that the law is constitutional on its face (that is, without considering any circumstances in which it was actually applied). According to Denniston, the circuit court indicates that the constitutionality may have to be decided again once the individual mandate is enforced, with possibly different results.

Will the Sixth Circuit's ruling that the law is facially valid be enough for the Supreme Court to find a conflict over constitutionality between the circuit courts? This is where my second argument comes in: Politically, I suspect that enough justices find it appealing to wait until after the next election before they take the case (four out of the nine justices are needed for the Supreme Court to hear a case). The argument that the issue needs more lower court "percolation" may be attractive for some of the more conservative justices. In 2012, President Obama may very well be defeated by a Republican; Congress may very well be willing to modify the individual mandate. If this happens, the Supreme Court could get around deciding the case. Why decide something now that you may not have to decide at all? Furthermore, to overturn the individual mandate, the Supreme Court would have to make an activist decision - it would have to overturn a federal statute, and doing so would require a re-interpretation (or direct rejection) of existing Commerce Clause precedent. More cautious justices may not be willing to do this if not absolutly necessary. While Justice Thomas is likely to insist on principle, even if it means overturning precedent, Justices Kennedy and Chief Justice Roberts (particularly in a Commerce Clause case), for example, may find the wait-and-see approach more palatable. The more liberal justices on the Court may decide to wait as well. If the law gets overturned or modified by Congress, upholding it now is useless; if the five more conservative justices are likely to overturn the law, waiting cannot hurt either. The arguably limited support of the Sixth Circuit decision for the law may be enough of an argument to avoid a decision in the coming term.

Obviously, this is pure speculation. We'll see soon what will happen.