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The Sound of Silence—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on Newyorktimes.com on October 31, 2012.

The Sound of Silence
By Linda Greenhouse ’78 MSL

Reading about the belated scramble by Massachusetts regulators to inspect the compounding pharmacies in their state in the wake of the meningitis crisis left me wondering about the apparent lack of federal oversight of the $3 billion compounding pharmacy industry. And that thought in turn called to mind an obscure Supreme Court decision from a decade ago that invoked the First Amendment to block one avenue of attempted federal regulation.

In that 2002 decision, Thompson v. Western States Medical Center, the court held by a vote of 5 to 4 that a congressional restriction on advertising by compounding pharmacies violated the companies' right to free speech. The advertising restriction was part of a bargain that Congress made with the industry in a 1997 law, the Food and Drug Administration Modernization Act. Under this deal, compounded drugs - those specially formulated to meet the needs of patients not served by drugs generally available on the commercial market - would not have to go through the Food and Drug Administration's approval process as long as the pharmacies that made them abided by certain rules.

One of the rules concerned soliciting business through advertising. A pharmacy could advertise its general availability for compounding, but could not "advertise or promote the compounding of any particular drug, class of drug, or type of drug." The idea, as the government later explained to the Supreme Court, was that compounding pharmacies could continue to serve their traditional role of filling doctors' prescriptions for individual patients, but would be limited in their ability to solicit business on a big scale or to engage in large-scale drug production - in other words, to conduct the kind of multi-state business in which the New England Compounding Pharmacy was engaged before it was shut down in the wake of the meningitis cases tied to its tainted product.

In the Supreme Court's view, the government's regulatory rationale was not sufficient to justify infringing on the pharmacies' right to engage in "commercial speech." The government had failed to explain why "forbidding advertising was a necessary as opposed to merely convenient means of achieving its interests," Justice Sandra Day O'Connor wrote for the majority, adding: "If the First Amendment means anything, it means that regulating speech must be a last - not first - resort."

The notion that the First Amendment protects the advertising of goods and services, although familiar today, is not of ancient lineage, deriving only from a Burger court decision in another pharmacy-related case in 1976. Justice Stephen G. Breyer's dissenting opinion in the compounding case warned against allowing this newly minted right to trump sensible federal regulation. "An overly rigid 'commercial speech' doctrine will transform what ought to be a legislative or regulatory decision about the best way to protect the health and safety of the American public into a constitutional decision prohibiting the legislature from enacting necessary protections," Justice Breyer wrote. Then he added: "Any such transformation would involve a tragic constitutional misunderstanding."

I don't know enough food and drug law to presume to know whether a Supreme Court decision the other way might have prevented the current medical and regulatory crisis. I offer this reflection on a decade-old Supreme Court case as a reminder that the court matters, in ways big and small, in ways we anticipate and ways that come into focus only in retrospect. A month into another blockbuster term (Affirmative action! Voting rights! Same-sex marriage!) we shouldn't need such a reminder, so here's the question: where is the Supreme Court in our national conversation?

I'm hardly the first - in fact, this close to Election Day, I may be just about the last - to note the court's absence from the presidential campaign. Not only haven't the candidates talked about the court, no one has even asked them. Every time a member of the audience at the second presidential debate, the town-hall debate, got up to ask a new question, I thought that surely the court's moment had come at last, but no. Of all the words uttered at the national party conventions, "Supreme Court" did not pass the lips of a single speaker at either one. If that sounds implausible - as it did to me - then check the handy interactive tool that the Times Web site posted after the conventions. Type in any word or phrase ("middle class," "American dream") and the tool will tell you how often it was mentioned by any speaker "per 25,000 spoken words." Type in "Supreme Court" and you will learn that "Democrats mentioned 'Supreme Court' 0.0 times per 25,000 words" and "Republicans mentioned 'Supreme Court' 0.0 times per 25,000 words."

Here, surely, is a mystery. During the Republican contest for the nomination, the court was much with us, even too much. Newt Gingrich, in his fleeting moment as front runner, published a 28-page screed attacking "lawless" federal judges in general and the Supreme Court in particular, warning that its power must be curbed "if we are going to retain American freedoms and American identity." And, of course, during the run-up to the Affordable Care Act decision, everyone had something to say about the court. Since then - silence.

A common explanation is that neither side has much to gain by talking about the Supreme Court. The Republicans are tongue-tied, this theory goes, due to the supposed apostasy of their one-time golden chief justice, John G. Roberts Jr., whom Mitt Romney once held up as a model of the kind of justice he would appoint. The Democrats for their part can hardly bash a court whose chief justice saved the president's signature legislative achievement. And talking about the court's future requires at least a gesture toward something specific - who? what? - an exercise evidently not for the faint-hearted.

Even if these observations are completely accurate, they seem somehow less than satisfying as explanations for how a central institution of American government could go in a span of weeks from preoccupation to invisibility, less worthy of attention than a Jeep factory in China. Surely something else must be going on.

One thought, suggested to me by Nathaniel Persily, a public opinion expert at Columbia Law School, is that the Supreme Court has become so politicized in the public mind that there's almost nothing left for politicians to say about it, no base that remains open to mobilization or inspiration. An analysis of recent polling data by Professor Persily and Andrea Campbell, a political scientist at the Massachusetts Institute of Technology, documents a partisan gulf of startling dimension that has opened since the court issued its decision in the health-care case in late June. (Adam Liptak discussed the Campbell and Persily unpublished study in his column several weeks ago.) After the ruling, Democrats' favorable view toward the Affordable Care Act rose substantially to 71 percent, while Republicans' favorable view sank to seven percent. Democrats give the court a 48 percent overall job approval, while only 31 percent of Republicans approve of the court. In polling in mid-July, only 21 percent of Republicans, compared to 43 percent of Democrats, thought the health-care ruling was the result of the justices' legal analysis rather than their personal preferences. In the face of such polarization, political strategists might well question whether talking about the Supreme Court, with all its inherent risks, is worth the candidates' time.

Understandable, perhaps. And yet, in a democracy, it seems the strangest and saddest of missed opportunities. While the candidates keep their silence, the justices have the last word.