Rebuking Crazy Talk on the Supreme Court

Remember Paul Krugman’s ridiculous comments regarding the Supreme Court’s decision to grant certiorari in King v. Burwell? Justice Elena Kagan–no one’s idea of a right-wing jurist, of course–has something to say about them:

Statements such as that of economics professor Paul Krugman’s argument in a New York Times column that the Court is corrupt, which was brought up by Eisgruber, are inaccurate, Kagan said.

“That is just ridiculous language,” she said.

Justices may agree or disagree, she said, yet they all fulfill their jobs in good faith.

“I think [the Supreme Court] is an institution of government that really works,” Kagan said.

Well said. Similarly enlightened commentary from Jonathan Adler:

For an example of someone making arguments that are not nearly as strong as he thinks they are it would be hard to do better than Paul Krugman’s most recent column.  In this piece, Krugman makes basic mistakes — e.g. the plaintiffs’ case is not based on just “one clause” in the statute — and insists that only an “incredibly hostile reader” could read “established by the State” to mean, well, “established by the State.” This would be news to the folks at CRS or those at the IRS who initially drafted implementing regs that tracked the statutory language. Even some folks on Krugman’s side have conceded that the statute’s words “clearly say” credits are only authorized in state-established exchanges, even if they believe this is “what Congress clearly did not mean.”

The one appellate court to agree with Krugman conceded “there is a certain sense to the plaintiffs’ position.”  Yet, according to Krugman, only those who are “hostile” and “corrupt” could reach such a conclusion.  In ruling for the government, the panel majority in King concluded  “the defendants have the stronger position, although only slightly,” and ultimately held for the government because it found the statutory language sufficiently ambiguous to support the IRS rule as a reasonable interpretation. I find the Fourth Circuit’s opinion reasonable but unconvincing. See this post for some of the reasons why the Fourth Circuit was wrong (or see my co-authored amicus brief for the Halbig en banc).  There are serious arguments here on both sides, but Krugman can’t see them.

According to Krugman, the claim in King is based upon an “obvious typo.” In other words, Krugman thinks this is a case of sloppy legislative drafting that should be corrected by the courts.  This is a popular argument among pundits, but it’s not made by the government or more knowledgeable legal experts — and for good reason: It’s a weak argument. In order for the government to prevail in arguing that a statute does not mean what the plain text says — that, there is a “scrivener’s error” or a statute would produce “absurd results” — the government has to show that there is no conceivable possibility that the text was deliberate.  For reasons I explained years ago (literally) this argument fails, as most thoughtful commentators on the other side have conceded.  The government’s strongest argument is not that there is a typo, but that the entire statute, construed as a whole, allows for what the IRS did, even if only because the text is sufficiently ambiguous to allow for the IRS’s interpretation.

And of course, the same criticisms could be applied to Linda Greenhouse’s commentary on the Court’s decision. One of Greenhouse’s complaints about the Court’s decision to grant certiorari is her claim that there is no circuit split, and no apparent emergency. Note that in addition to being wrong, Greenhouse also opts to be hypocritical:

Finally, I find Greenhouse’s stated rationale puzzling because there are instances of the Court granting cert absent a split or an emergency when Greenhouse apparently hasn’t found the grant at all objectionable. Consider the cert petition in Lawrence v. Texas, which did not allege a split or claim an emergency. The Court granted cert even though the petition did not meet the usual criteria for cert. When Greenhouse has written about Lawrence, she hasn’t lamented the cert grant as a “power grab” (naked or otherwise) that ruined her faith in the Supreme Court. Instead she has celebrated what a wonderful moment it was when the Court handed down its opinion.

Is it too much to ask that the New York Times find pundits who are capable of providing more intelligent commentary regarding the Supreme Court’s actions?

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