The Chief Justice’s seizures

CJ Roberts’ opinion wasn’t a seizure, but may have been influenced by his experience of epilepsy.

Wingnut talk radio host Michael Savage :

It’s well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Therefore neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts’ writings you can see the cognitive dissociation in what he is saying.

Disgusting and silly? Sure, but there may be a seed of truth in the pile of horse dung.

The Supreme Court Justices range in age from Kagan’s sprightly middle-aged 52 to Ginsburg’s distinctly elderly 79. They all probably take some pill or other, and worry about their health. However, like members of Congress and the President they are protected from any real anxiety about unaffordable medical costs by the generous Federal Employees Health Benefits Program, a pocket Obamacare regulated exchange.
Robert’s epilepsy is in a different category to high blood pressure, arthritis, obesity, menopausal symptoms, erectile dysfunction, and the rest of the ills which ageing judicial (or for that matter blogger) flesh is heir to. It’s mainly genetic – the rest is a side-effect of trauma. It’s pure bad luck, and not a consequence of lifestyle. And it’s very serious.

Epilepsy often manifests itself in childhood, and so becomes a classic pre-existing condition for insurers. Epilepsy sufferers must be at high risk of being denied insurance like this young woman. The US associations of epilepsy victims and medical specialists have naturally supported ACA and welcomed the ruling.

It’s most unlikely that the experience of epilepsy swung Chief Justice Roberts’ vote by itself. But it is certainly an important contribution to his character, and gives him an insight into at least one category of serious medical need denied to his fellow justices. Tellingly, Roberts’ opinion (here, page 17) cites pre-existing conditions as one of the problems addressed by Congress in ACA. He does not mention ACA’s objective of reducing the number of uninsured Americans, as Ginsburg does (ibid, pages 5-9); for Roberts, the uninsured occur only as creators of the cost-shifting problem for medical providers and insurers.

Personal experience matters. As Harold wrote on the surprising breadth of support for the intellectually disabled and their caregivers:

It seems that everyone has a child or sibling, cousin, uncle, classmate, or friend who is personally touched by these issues.

So maybe when Roberts looked hard at Scalia’s scorched-earth assault on ACA, he saw the flames licking his own face, and recoiled.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

20 thoughts on “The Chief Justice’s seizures”

  1. I too think that Roberts was influenced by his personal medical history, but not only in the sense that he can so easily empathize with those denied insurance due to a preexisting condition of whatever kind.

    I think his greater realization is that without his having received quality medical care for all these years, it is quite unlikely that he would have reached his current position, or that he would have his current abilities. He is in a position to comprehend without doubt that his own active and ongoing high-quality medical care is an absolute necessity for him to live his life as he is doing.

    Most people are fortunate enough to believe that while medical insurance is a luxury and definitely to be preferred, not so many realize it to be utterly essential in their own lives. His experience with epilepsy puts Roberts into the second camp, and I think this is a far more powerful motivation than the abstract idea of being locked out of insurance for various preexisting conditions.

    1. Isn’t this a distinction without a difference? The set of the voluntarily uninsured – “young feckless libertarians” – doesn’t include many epileptics, who can safely be presumed to seek medical insurance. If they have insurance, their medical needs are readily met. So access to competent medical care is perfectly aligned with access to decent medical insurance.

      1. Very little difference, I must agree. In fact, it’s rather vague even to me at this point.

        I guess the distinction would be that to most (healthy) people, lack of insurance is merely a financial abstraction they’re comfortable ignoring, since they believe that emergency care is available to all (or alternatively they can just risk bankruptcy), while to someone with a serious chronic condition, insurance is what enables them to live their lives in a meaningful way–personal and not at all abstract. As with statistical data, it becomes quite different when you are the data point, and ability to function well trumps most financial concerns.

        It would be useful to put more people’s personal stories out there to emphasize the personal. I was quite struck by the young woman’s story* in which she was diagnosed with cervical cancer but could not obtain treatment due to lack of insurance, and was considering getting pregnant in order to obtain coverage. Many people wrongly believe that it’s all about finances, and that’s what Roberts knows to be untrue.


  2. Interesting possibility. More and more I have come to think of many conservatives as differing from liberals in large part by their greater difficulty in putting themselves in shoes different from their own and those like them. Hence their good heartedness to even liberal family members (we’re family) combined with an almost tribal approach to politics. David Koch gives generously to cancer research – and he has prostate cancer. He can empathize. My own evolution from conservatism years ago had more to do with enlarging my ability to empathize than any intellectual arguments. They helped cement changes they did not cause.

    So I think you might well be on to something.

  3. I’ve mulled over this a bit, and I’ve started to think that the simplest explanation is the best. And that is that Roberts is a conservative justice, but where he changes precedent, he also does so in a piecemeal fashion. This is just his normal judicial temperament.

    As Jan Crawford reports [1], he was obviously unwilling from the start to tear down the PPACA in its entirety, like the rest of the conservative wing. That may have been motivated by knowing what it’s like to be dependent on healthcare or just that he simply is not a firebrand like Scalia. At the same time, he was also obviously unwilling to expand Commerce Clause interpretation further. So, he had the choice between finding the mandate unconstitutional, but severable, and finding it constitutional based on a non-CC/N&PC argument. And a 4-1-4 split (where the liberal justices uphold the mandate and the rest of the PPACA, Roberts upholds only the rest of the PPACA, and the conservative justices want to strike down the law in its entirety) would have created an unholy mess (not just politically, but also judicially — given that you probably couldn’t find five votes to agree on which parts of the PPACA to sever along with the mandate to keep it functional). And so, he went with the tax argument as in his opinion either as the least bad solution or because he became convinced that the mandate is indeed not severable.

    [1] And dear god, must there be bad blood on the court right now. Either conservative clerks leaked that (and jeopardized their career in the process, which means that they would have felt very strongly about it) or conservative justices.went for a retaliatory strike at Roberts.

    1. @Katja: According to Jan Crawford, “But in this closely-watched case, word of Roberts’ unusual shift has spread widely within the Court, and is known among law clerks, chambers’ aides and secretaries.” It’s certainly possible that the people who talked to Crawford did so in an attempt to retaliate against Roberts for his decision, but don’t underestimate the tendency of people to spread interesting gossip.

      1. Not impossible, but … the last time someone of the regular staff leaked something (a printer, I recall), he was pretty much fired on the spot.

        More importantly, Jan Crawford says she has two sources, which makes the loose lips scenario less likely.

      2. Th omertà rule holds in full until the decision is released. Afterwards, less so.

  4. I think people are giving this guy way too much credit. I think he switched his vote because he could see that another politically charged 5-4 decision would cost the court a tremendous amount of its legitimacy and might trigger a political battle to clip the court’s wings that he wasn’t sure he could survive. He could see a real firestorm brewing, stoked not just by angry Democrats but also by a large number of very conservative (but non-movement) writers and legal scholars. Between that and Scalia’s clown show, he was feeling boxed in and frightened. That’s why his opinion was so obviously reedited from writing for a 5-4 conservative majority to strike down the ACA to writing for a 5-4 majority to uphold it. It’s also why the dissents seem like so much like concurring opinions and the concurring opinions seem a lot like dissents. The simplest explanation is that Roberts simply lost his nerve at the last minute.

    1. I second this, especially when the alternative is that a Federalist Society member had empathy.

    2. “Lost his nerve” isn’t really an explanation. We are still left with empathy, corporate interests, and small-c conservatism as substantive explanations, in any combination. My argument merely shows how empathy is possible.

      1. “Lost his nerve” is at least as good an explanation of why Roberts changed his vote as pop-psychology analysis about how his own need for medical care melted his heart for the very first time. It’s touching but unsupported by anything in past interactions with the real world. Self-preservation is much simpler and accords far better with his history as a political hack and the way the opinions were written.

  5. I don’t know why Roberts changed his mind, but my brother has epilepsy and you can’t imagine how hard it is for people to find work and to get past the perception of disability. My brother had his driver’s license suspended for six months 15 years ago when he first had symptoms, while the doctors worked to get the condition under control. The suspension was lifted after six months when he did not have a seizure for some period of time — and he STILL gets denied jobs based on that original suspension all those years ago. I could go on for a long time about this, but suffice it to say, you NEVER want to have a diagnosis of seizures or epilepsy for all kinds of reasons, and if you are a parent who has a child resist a “definitive” diagnosis until you have no other option. It will follow them forever. My brother was in his early 30s when the disease became manifest (although doctors who have taken a careful history believe that he had it even as a child, it just didn’t become major seizures for a while).

    As for Roberts — if you actually read the dissent with anything like an informed view of Supreme Court jurisprudence you will understand how incredibly radical it is — my guess is that where Roberts parted company first and foremost was on the outright refusal to consider severability, to jettison literally everything, even those things totally disconnected from insurance reform. I am guessing that was the bridge too far.

  6. Every couple of days I read a new batch of speculation on “why” and I keep coming back to this simplistic alternative — “because he had an insight, before it was too late.”

    A year ago I stated (here and on Concurring Opinions) that Congress blew the deal when they called the payment for non-insurance a “penalty.” They could have called it, not a “tax,” but rather a “non-insured fee,” like the state of Virginia does for motorists who opt not to purchase auto insurance. Nobody has been so silly as to question the right of the state to collect a “fee” to cover the costs caused by failure to insure.

    So here’s the Chief Justice, who wants to be a “conservative” but who is also a reasonably smart guy who wants NOT to be a judicial activist, and he’s in a quandry. Overturning legislation is “activism” unless you have a firm hook to hang your hat on. Equally shaky as passing legislation without a Constitutional hook to hang your hook on. “Conservative,” to Roberts, means trying to follow the Constitution both on upholding and overturning, and giving strong deference to established precedents.

    The Legislature, and subsequently the Executive Branch, collaborated in ineptitude by hanging their law on a very weak hook instead of the much stronger one available to them. And they had all these cases, and all these briefs presented, based on that weak “Commerce Clause” argument. And then at the last minute, but fortunately, in time, Mr. Chief Justice Roberts had an attack of high IQ. He realized that he didn’t have to agree with their very shaky (and to him, wrong) hook they had all hung on. Instead, the law was clearly right, but the doofuses in Congress had simply misnamed it. The Supremes are NOT obligated to judge based on the arguments presented, but rather on the law itself. So Roberts realized he could tell the doofuses their arguments were all wrong, but their law was OK anyway. (By the way, I suspect his politics slipped in by his use of the word “tax” instead of “fee.” Clearly Congress is within their powers to enact it, whatever they call it. So Roberts chose to use the word “tax” instead of “fee” to give ammunition to the Republicans in the elections to follow.)

    If we had just this one case to base our guesses, I would guess Mr. Chief Justice Roberts is at least one standard deviation smarter than any of the other eight.

  7. I doubt that coverage has ever been an issue for Chief Justice Roberts. I was an associate in a major D.C. law firm when my husband’s epilepsy manifested, and I have changed jobs several times since, and insurance coverage of his pre-existing condition has never once been a problem for us. That is, of course, the way it should be for everyone, and the awareness that he has a major pre-existing condition may have given him some insight, but he has probably never had any serious issue with regards to insurance coverage.

    1. Not personally, sure, especially as Roberts’ first reported seizure was in 1993, when he was 38 and well established in his career. But people with major chronic conditions tend to find each other out; it’s likely that Roberts knows other victims personally. My speculation works better for this sort of proximate empathy than for his own privileged case, in spite of my purple last line.

  8. If we’re talking about recoiling from Scalia’s scorched-earth policy, let’s consider the possibility — as suggested by Katja — that Roberts couldn’t get (enough of) the conservative bloc to sign on to his opinion, had it been written to strike the law down. The chief justice assigns opinions when voting in the majority, but if the majority depends on the chief justice assigning the opinion to a vindictive power-crazy rival that, too, might be a bridge too far.

  9. I think it’s perfectly possible to have good access to health care and realize how important it is and _still_ not give a whit whether other people have it or not. It’s called selfishness.

  10. It will also be interesting to see how Roberts’ future opinions play out, now that he has experienced the incredible vitriol and disrespect that he’s been getting from the right, even from his own Court. Confidences have been violated, and the Court itself has been dismissed as the arbiter of what’s Constitutional, and the accusation of mental unfitness is particularly hateful, and although there has been criticism from the left over the years, it’s different to be attacked this way by your own. Roberts probably understood that he would be inviting fire with his decision, but I doubt he realized how severe and personal it would be. In any case, it takes guts to be the deciding vote of an opinion you know will be a very unpopular with your own supporters, especially when dealing with the likes of Scalia. I wish him well.

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