The case of Sorrell v. IMS Health, which the Supreme Court decided yesterday, sharply focuses the philosophical disagreement over the role of the courts in public policy. The legal question was rather straightforward; the ethical issues are complex. Is it the Court’s duty to make bad—but constitutional— laws work, or is its duty to follow the laws, and leave it to the legislature to fix their flaws?
This was a case about incompetent lawmaking. Gladys Mensing and Julie Demahy had sued Pliva and other generic drug manufacturers in Louisiana and Minnesota over the labels for metoclopramide, the generic version of Reglan. The drug, used to treat acid reflux, had caused them to develop a neurological movement disorder called tardive dyskinesia. None of the generic drug’s manufacturers and distributors included warnings on the labels about the danger of extended use of the medication, even though the risk was known to them. Neither did the manufacturers of the brand-name drug. The problem was that the state statutes required generic drug manufacturers to included warnings about dangerous side effects, while federal regulations required generic drugs to carry the exact same label information as their brand name equivalent. In other words, following the state law could violate the federal law. Since federal law trumps state law, and the generic drug manufacturers were in compliance with the law by not warning users (as the brand name users weren’t being warned either), the 5-4 Supreme Court majority ruled that the law suit was barred. The plaintiffs couldn’t claim that the generic brand manufacturers were negligent in failing to warn them, when federal law said that they couldn’t warn them until the brand name equivalent did.
Justice Clarence Thomas, writing the majority, admitted that the result made no sense, but was dictated by the law. His remedy: Congress needs to fix it. The dissenters, on the other hand, focused on the injustice of the decision. “As a result of today’s decision, whether a consumer harmed by inadequate warnings can obtain relief turns solely on the happenstance of whether her pharmacist filled her prescription with a brand-name or generic drug,” wrote Justice Sonia Sotomayor. Yup, that’s right. And it isn’t the Court’s role, or any court’s role, to fix badly drafted laws.
The system that many progressives would prefer and that the press cynically promotes would be public policy crafted by the judiciary, a system in which appointed judges amend, adjust or ignore laws to make them come out “right.” There are many problems with this system, which is only superficially fair or just.
- It is undemocratic. We elect legislators to make the laws, and they are to be held accountable for the laws they make.
- It is capricious. Citizens have to be able to depend on the laws as written and passed, and not have laws turned upside-down because a court majority decides that a law is unwise or has unanticipated effects.
- It is an abuse of judicial power. When a court refuses to allow a law to be followed, not because the law violates constitutional principles but because it is just a bad law, that court is taking on the role of lawmaker, and that itself is unconstitutional.
The press, either out of ignorance or ideological bias, consistently misrepresents this issue in the coverage of Supreme Court decisions. “Supreme Court protects generic-drug makers from being sued for lack of warning” was the Washington Post headline for the decision; accurate, but misleading. “Supreme Court protects generic-drug makers from being sued for obeying Federal law” would have been fairer. That, however, wouldn’t feed the Democratic narrative that the conservative wing of the Court is a patsy for big business.
It is tempting to say that the case is another one in which law wins and ethics loses. That isn’t quite right either. It is certainly true that Gladys Mensing and Julie Demahy have been victimized by the clash between the state and Federal laws, and that is wrong. Nevertheless, relieving Congress of accountability for doing its Constitution-mandated job badly would be more wrong, and more damaging to the nation over the long run. It cannot be the Court’s job to fix lousy legislation drawn up by lazy, conflicted, corrupt or stupid elected officials. Those officials should not be permitted to shrug off the disastrous results of their slovenly work habits by saying, “Don’t worry, the courts will clean it up.” The most important reason to have judges on the bench who decide cases based on the laws as they are written is that it forces both legislators and their constituencies to be serious about the hard work of self-government. Gladys Mensing and Julie Demahy shouldn’t blame the Supreme Court for their plight; they should blame Congress, the same Congress that passed a 3,000 page health care reform bill without reading it.
The Supreme Court should interpret the laws, and force Congress to be accountable when their legislation—and their sloppiness—hurt trusting Americans. Requiring judges to do the work of legislators is ultimately unethical, removing accountability from lawmaking, which removes democracy as well. Sorrell v. IMS Health is an unjust decision for the plaintiffs, but an ethical one for the United States.