When I was young, my two old-maid aunts who resided with us nicknamed me the “Yeah, but,” Kid. Whenever my Irish mother would scold me for some peccadillo, I always had an excuse, and yet I never got a chance to tell it. My mother never gave me the opportunity to explain my transgression (or at least what she deemed a “transgression” at the time). I suppose it was good training for adulthood, as we all live in a bit of a “yeah, but” world. Let's consider, for example, your next airline flight: “Why did you pack that in your carry-on? Don't you know that it is forbidden to…?” Yeah, but…!”

Anyone who watched the State of the Union Address by President Obama on January 27th witnessed a bit of “yeah, but-ting” by at least a majority of the Supreme Court justices present. Obama called them to task for their pro-special interests decision in the recent case of Citizens United v. Federal Elections Commission, which had barred use by some conservatives of Hillary: The Movie, which was intended to have Hillary Clinton's campaign supporters yeahbutting. There sat Associate Justice Samuel A. Alito shaking his head and presumably mouthing some version of “yeah, but….” Those who appear before the U.S. Supreme Court—or any court for that matter—often find themselves trying to explain the “yeah, but” when pinned down by a tough inquisitor on the bench or by a prosecutor. The theory may be that we are “innocent until proven guilty,” but reality is that everybody is vulnerable.

I have touched on factors such as the Supreme Court and lobbyists several times over the months and years (see Getting Murdered on K Street, which appeared in the March 2008 issue, or Fraud and Justice in the September 2009 issue). Any adjuster who has an interest in law, history, or political science may have noticed, either agreeing or taking issue with this columnist. Shifting cultural changes are often reflected in court decisions. Few of us in the insurance vocation would probably brag that we are part of a “special interest group,” but the reality is that we all support our lobbyists through the organizations to which we belong, from religious institutions to AARP to AAA or the NRA. We have that right under the First Amendment to the Constitution, to “peaceably … assemble, and to petition the Government for a redress of grievances.”

The President's Grand Inquisition suggested that the Citizens United case opened the door to undue influence by special interests, including foreign corporations and governments, giving such entities the right to influence how Americans vote. Unfortunately, the reality is that very few of us actually do vote—usually barely more than 50 percent in a national election—so those that do, and who are influenced in their vote by a special interest group, have twice the power to elect than the non-voters. As Associate Justice Louis Brandeis said some 70 or so years ago, “The most important political office is that of the private citizen.”

Supreme Court History

A series of PBS specials about the history of the U.S. Supreme Court has been offered in several locales over recent months. Any of us who watched the series can easily understand the impact of Supreme Court decisions on those of us in the insurance adjusting profession. Regardless of whether the decisions are handed down by federal appellate, state appellate, or supreme courts, each decision has an impact on us. I am bewildered about how anyone can adjust claims without a solid working knowledge of both state and federal court findings, especially for any adjuster who handles claims in more than one state.

Readers may recall that in the December column, which I wrote in September, I predicated that any truly national health insurance law was unlikely to pass in any form. At present, this continues to be the case. Even if such legislation could sneak through, hundreds of state attorneys general have lined up to have it declared unconstitutional. Thus, whatever comes in the health insurance debate will ultimately end up in the Supreme Court.

It has been nearly 50 years since I studied constitutional law, but I have learned about the Court's various administrations, from the conservatives such as Felix Frankfurter to the liberals Black, Douglas, Brennan, and Thurgood Marshall. The Court has been like a pendulum, swinging back and forth between left and right, conservative and liberal, North and South, pro and con. Republican presidents nominated men and women who they thought would be conservative and non-activist. They were rarely successful. Earl Warren led perhaps the most liberal Court; Burger's Court was similar.

Then came the shy, off-standing William Rehnquist, a Reagan nominee, and in his and his successor John Roberts' Court, the power fell to the right center, where it remains at present. Enough important decisions came down to demonstrate that the Court had shifted, and often left a confused America certain only of uncertainty. Generally, once the Court has spoken, there is no room for “Yeah, but…”

Property Rights Versus Human Rights

Since the 18th-century days of the Federalist disputes between Salmon P. Chase and John Marshall, American politics can be summed up as a debate about what is more important: the rights of property ownership (including a corporation's rights to do exactly as it pleases, ? la the Wall Street banks) or the rights of individuals for personal needs and well-being. Conservative justices, such as Chief Justice Roger Taney in the Dred Scott pre-Civil War era, protecting the rights of slave owners, have generally ruled in favor of property rights. Consider the 2009 Supreme Court decision involving the New London (Connecticut) Development Corporation ruling (5:4) that a corporation has the right to take private land and turn it over to another corporation—in this case, the pharmaceutical firm Pfizer. (When the homes were all ripped out under the Court's “eminent domain” theory, Pfizer decided not to move there, after all. Thanks, guys.)

On the other hand, there have been more liberal human-rights decisions, many in the 1950s and 1960s, such as Brown v. Board of Education, the Miranda ruling, or Roe v. Wade. Multitudes cheered, while still other multitudes jeered. But the nation survived integration, and few under age 50 have any recollection of what the Jim Crow South was really like until the time of the Vietnam War.

The new Citizens United decision this January by a slim majority of the Roberts Court emphasizes the impact of property or corporate rights over individual rights. Do the “little guys” have any power against the K Street lobbyists and corporate contributions? E.J. Dionne of the Washington Post says the Court has tilted, “decisively in favor of corporate interests.” The St. Petersburg Times says the Court “overreached.” Fred Wertheimer, a political analyst, says the decision will be “turning the clock back 100 years,” as Congress has, over that period of time, continuously passed legislation limiting the rights of corporations and special interests to influence elections. Senate Minority Leader Mitch McConnell, of course, disagrees.

As Jeff Jacoby of the Boston Globe notes, however, the case does point to how far out of favor the First Amendment right of free speech has become. He notes that the decision “demolished the caste system” that allowed some groups to speak their peace while denying that right (by legislation, such as the McCain-Feingold Act) to other groups. Thus, the Chicago Tribune suspects that the response, including that in the State of the Union speech by our Grand Inquisitor, may be “overblown.”

Like the Supreme Court, we adjusters who deal with the drama of loss every day must walk a careful path between the interests of the individual—such as a claimant or insured—and the interests of the insuring entity that pays our salaries. Each of us must be aware of how the courts in our jurisdiction have ruled on certain situations. Just as important, each of us must also be our own judge in making the right decisions. When our claimant or insured replies to our decision with a “yeah, but…” unlike that other Grand Inquisitor, my mother, we must listen to the explanations and excuses and consider the pros and cons.

The Privacy Issue

Let's think about an issue adjusters struggle with on a daily basis: privacy. This column has explored it before. (Refer to The TSA and Dropping Shoes in the May 2007 issue). Does the U.S. Constitution provide a right of privacy? The word does not appear anywhere in the Constitution, as Associate Justice Antonin Scalia recently pointed out. Our so-called Founding Fathers, who seldom agreed between themselves on anything, would have been unlikely to think in terms of privacy issues as they exist in the 21st century. Back then, unless one went out in the street and shouted, he could think and say what he pleased. But our world is more complex than that.

We want availability of medical records, but want those records to be private, a right guaranteed by the Health Insurance Portability and Accountability Act (HIPAA). We want our cell phone conversations to be confidential and don't want hackers reading our e-mails. Yet, none of us are ready to storm the NSA in Washington for listening in on such communications in its attempt to prevent terrorism. In the 18th-century world of the Constitution's authors (not all of whom were lawyers, by the way), there were farmers—probably slave owners—and merchants and skilled craftsmen. Information was only the printed word, and it was just as biased and partisan as our modern media and Congress.

Personally, I believe there is a Constitutional right of privacy. Does the Fourth Amendment not read, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated…”? It does not specify who is not to conduct such search or seizure, and if that seizure is electronic without (as the rest of the Amendment reads) an issued warrant, then it is an unconstitutional invasion of privacy. But then Antonin Scalia is on the Supreme Court, whereas I am not.

The courts have granted insurers the right to investigate claims by and against their insureds, but not the right to invade individual privacy. Undoubtedly, many insurers—including those in the health insurance market, subject to HIPAA—would argue that position on the basis that proper underwriting and claim investigation warrants such an invasion. That is one of the roadblock issues in the health insurance debate, for the insurers want the right to know all about the insured. Well, does it have that right? K

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The &quot;Yeah, But&quot; Kid Meets the Grand Inquisitor

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