Q&A: Former Ginsburg clerk discusses her healthcare legacy

September 24, 2020

As the nation mourns the loss of Supreme Court Justice Ruth Bader Ginsburg, what will be her healthcare legacy?

In a year which has already seen unprecedented upheavals, the death of U.S. Supreme Court Justice Ruth Bader Ginsburg has added another level of uncertainty.

As Republicans rush to fill her seat and possibly shift the courts to the right for a generation, Medical Economics spoke with Jonathan Entin, professor emeritus at Case Western Reserve University’s School of Law and a former clerk for Ginsburg.

Entin got to know Ginsburg over a 40-year friendship that began when he interviewed for the clerkship on the day she was confirmed to the DC Circuit Court.

The following conversation has been edited for length and clarity.

Medical Economics: Justice Ginsburg took part in a number of landmark cases, many of which dealing with healthcare. Did she have a guiding philosophy in terms of healthcare?

Jonathan Entin: I don't know that, that she did have a big unifying view on it. I don't think she actually wrote that many opinions in healthcare cases. I mean, she would she was there for cases. She did write. In the in the ACA case in 2012. Um, and she's written in in some others, but I think that her views about healthcare were kind of tied up with her broader views about the law. In general, so for example, in in the ACA case, which involve the constitutionality of the statute and have various provisions, she wrote her opinion in a way that try to fit her view of the of that statute into broader themes of constitutional doctrine. Chief Justice Roberts wrote the controlling opinion in that case, you'll recall and he said that the individual mandate was not a permissible exercise of Congress's power. She wrote a separate opinion, that strongly disagreed with Chief Justice Roberts in that regard, and said that, if you analyze the statute, according to the way, the Supreme Court had been analyzing commerce clause issues over the previous 75 years or so that this was a permissible exercise of the Congress power.

The other part of the case that was at issue was the Medicaid expansion and although the constitutionality of the of the mandate was upheld, five to four, the Medicaid expansion was actually struck down by a vote of seven to two and Justice Ginsburg, who dissented on that point, but she thought it Well, the reason it was struck down was because the majority concluded that that the arrangement was unduly coercive of the states on the mat, the expansion, provided that if the state did not expand Medicaid, not only would it fail to get the funds associated with expansion, it would lose all of the federal Medicaid funding even for what was already in place. And in the majority said that that that went too far. Justice Ginsburg thought that it was permissible, maybe debatable as a matter of policy, but but within federal power.

So, that didn't necessarily reflect a broad theme about health care as such. To the extent that she had a big, general view about health-related issues, I think we can say that you see that more in her views about access to contraception and abortion.

So, she was generally supportive of the efforts of the Obama administration to craft an exemption from the contraceptive mandate for religious employers. But her view was that the that the exception should be fairly narrow, because even if religious employers had scruples about any or some forms of contraception, the failure to pay for provide such coverage would have significant impact on third parties, right? Female workers or the partners of male workers. And so, but for her this was a, this was a question of, of autonomy for women, which was, of course one of her, one of her long standing concerns as a law professor and a lawyer before she went on the bench. Similarly, in the abortion context, she has been really, really she had been really supportive of providing women with access to abortion, to safe and legal abortion, as an aspect of autonomy in personhood, and things like that. So, to the extent that there was a general theme in these areas, it really was part of her her larger commitments to gender equality.

ME: If you could completely remove politics from the equation, what kind of jurist would you like to see fill Ginsburg’s seat?

JE: Well, I don't think anybody can. Well, somebody will sit in that chair, but nobody can fill her seat now. I'm biased, right? I knew her for 40 years, I worked with her. We were kind of family in a way. So, I'm not at all objective here, but I think she can't be replaced. Because she was one of those rare figures on the Supreme Court, who would have been a nationally important person, even if she had never been a judge.

Maybe the fact that she was a prominent law professor doesn't count for national stature, particularly there aren't that many such people. But because of what she did as an advocate, in helping, in playing a huge role in transforming the law, there isn't anybody like that out there.

There’s not very many other people who sat on Supreme Court who were like that, Thurgood Marshall comes to mind, because he was so important for so long in the civil rights movement.

These days, where the parties are polarized. Supreme Court appointments, in particular, are really fraught politically. And it takes only a simple majority in the Senate to get somebody confirmed. People are now looking for “reliable appointees.” And how do you know if somebody is reliable? Well, you'll look for somebody who's been a Court of Appeals judge who has some kind of track record and that way you can root out people who are going to stray from the party line. And that, to me, is a big problem for the court, regardless, so we are almost certainly going to see a virtually party line vote on the next justice, even if the appointment were delayed until after the election. We'd still have those same dynamics.

Whether President Trump or Vice President Biden make the appointment, we're not going to get that kind of person. We're in a different place and I think that's unfortunate.

ME: The latest attempt to strike down the Affordable Care Act (ACA) will be heard by the court just after the election. Where do you think Justice Ginsburg would fall on this particular case?

JE: I think that if Justice Ginsburg were there, I think she would regard this as a pretty weak claim. I mean, there are a number of ways that case could could get decided.

But, given her approach to interpreting statutes, I can't imagine that (Justice Ginsburg) would say that the entire statute would be unconstitutional, even if the mandate is unconstitutional. She might have been prepared to say, and I can't say on the basis of any thing in particular.

I could envision the possibility that she might agree that the mandate is now unconstitutional, because it's zero. I doubt that she would do that. But I think she would be willing to say, even if I accepted that for the sake of discussion, it doesn't follow that you take down the entire statute as a result. I just don't see how that follows. That's an enormous tail to be wagging the small dog.

ME: Do you think Justice Ginsburg is leaving a legacy within the healthcare space?

JE: My sense is that she didn't do a lot of writing on healthcare issues that as a distinctive body of law and given the given the way the court seems to be headed, it looks like we'll have had a majority republican appointed Supreme Court for a very, very long time for 50 years or more, and she was always in the minority on the court, in that sense, and she is, you know, if that's likely to remain the case, going forward.

But in some ways, if you play the long game, if you have a long enough historical perspective, yes, maybe some of what she was saying on the court in the healthcare area, might come back down the road. But, you know, it's hard to tell what, once we're gone, we have no control over anything. And I mean, I think her legacy here in the law is not likely to be mainly in the healthcare space. That was not really her area.

She did write some opinions in the health care area, you know, besides abortion, contraception and the ACA, but along with kind of technical questions like, you know, to what extent do federal health care rules relate to state laws and in which courts have jurisdiction to entertain, which sorts of cases and those are really important.

As a law professor she focused a lot on procedure and jurisdiction and things like that. So, it's not surprising that she would be writing in those areas, but those aren't the kinds of issues that the medical or healthcare sector would necessarily see as his top priority matters that affect them on a day to day basis. They can be important, but they're really things that the lawyers will advise them on more than things that will structure the way a doctor or a researcher will necessarily operate on a day to day basis.