The Supreme Court Bats .500. Legal and Political Analysis Follows.


The United States Supreme Court has come out with two major opinions, in as many days. The first concerned Barack Obama’s health care law, and featured a bad outcome based on poor reasoning. The second concerned the issue of same-sex marriage and featured a laudable outcome based on less-than-good reasoning.

We’ll take the health care case–King v. Burwell–first. Law professor Josh Blackman explains the deficiencies of Chief Justice Roberts’s majority opinion succinctly. As Blackman writes, to avoid what the Court has deemed an undesirable policy outcome, the chief simply labeled major and important language in the Affordable Care Act as “inartful drafting,” and declared that we could ignore it by looking at the context of the legislation the majority determined should serve as the focus of our attention. In doing so, the majority essentially rewrote legislation, which–if you remember your Civics 101–is not the job of the Supreme Court. The Court is not a super-legislature, though the majority is clearly under a different impression. The Court also cannot blithely declare that words simply have no meaning whatsoever, though again, try telling the majority that.

Jonathan Adler is right on the money:

Today’s decision in King v. Burwell is notable in many respects.  It is a significant legal victory for the Obama Administration, a victory for purposivist statutory interpretation, a loss for textualism, and a loss for an expansive Chevron doctrine.  In these latter respects, the decision is something of a double-loss for Justice Scalia (which may explain the last line of his opinion).  King also means that, in many respects, the PPACA is now the law that Chief Justice Roberts wrote as here, as in NFIB v. Sebelius, the Chief Justice has decided it is the Court’s job to determine what the statute means — even if this requires ignoring or rewriting text — if such is necessary in order to save it.  The umpire has decided it’s okay to pinch hit to ensure the right team wins.

[. . .]

Just as the Chief Justice rewrote the individual mandate into a tax, and rewrote the Medicaid expansion to sever it from traditional Medicaid, the Chief Justice has rewritten Section 36B of the Internal Revenue Code to excise the repeated reference to exchanges “established by the State.”  Justice Scalia, in dissent, said Obamacare should now be known SCOTUSCare. Whatever we call it, the PPACA is now, in many respects, the law that Chief Justice John Roberts wrote.

I actually have a great deal of admiration and respect for the chief. But the chief is not a representative, or a senator. He is the chief justice of the United States, and therefore, most emphatically not a legislator. Too bad that no one appears to have given the chief that particular memo.

David Bernstein reminds us that Obamacare was rushed through Congress, and that as a consequence of all of the rushing, Congress engaged in “legally dubious procedural maneuvering.” No one actually read the bill that Congress passed, and the Obama administration “has been left with using and abusing executive discretion to delay, ignore, and modify statutory provisions to get the law to work, or just to avoid the negative political consequences of it working as planned.”

King v. Burwell represented the best hope that the Supreme Court would take the appropriate posture on all this, which is that those who rush through a law they haven’t even read or understood and with no political support from the other side have to live with the consequences when inevitable mistakes arise. Instead, the majority took the position that its job is to help out the other branches when it turns out that such a law is unworkable as written. Too bad.

All of this makes Justice Scalia’s criticism of the majority opinion quite apt. And yes, if you really care about the rule of law, you should not like the Court’s decision in King v. Burwell. Randy Barnett:

. . . the Chief Justice seems to be telling us that he is once again putting a thumb on the scale for the government here as he did in his solo opinion in NFIB. Rather than assessing the constitutionality of the law as written – or enforcing it according to its terms – the court will rewrite the law to suit the government. And, if the government needs such a thumb on the scale, then this only reinforces my sense that the challengers actually have the better of the argument.

[. . .]

I support our constitutional system of checks and balances because it provides many avenues to block the adoption of bad legislation. The downside is that, once legislation is enacted, that same system effectively blocks its repeal. This is what the supporters of the ACA have been counting on since ramming it through both houses of Congress on a straight party-line vote. The ACA was unpopular then, and it remains unpopular today. Since it was enacted, the control of both houses of Congress has changed – largely due to this issue.

Now, only the veto power of the president, supported by an adamant Democratic minority in Congress stands between us and meaningful health insurance reform that will improve rather than harm American health care. Had the IRS regulation been invalidated today rather than upheld, we would have had a golden opportunity to redress the error of the ACA by enacting real health insurance reform. For this reason, I rooted for the challenge to succeed, but it was not to be. For me, the truly sad result of today’s decision – like that in NFIB – is that another opportunity for genuine health insurance reform has been lost.

All of this having been written, the politics of the fight over health care reform now demand changes in strategy and tactics from Republicans. Jennifer Rubin:

As we proceed forward on Obamacare and look ahead to 2016, one can only hope conservatives stop rending their garments. They should instead get to work. Every Republican candidate running for president, we can stipulate, wants to repeal Obamacare. There is no sense in squabbling over who wants it “more.” The real test is not who can dream up the most outlandish names for things and people they don’t like, but who is best able to navigate away from Obamacare toward something better. The former is how a minority party (or radio talk show host) acts; the latter is how a majority proposes to govern.

For so long the mantra on the conservative side has been “repeal and replace” that pols and pundits became confused. They obsessed on repeal, as if that was a prerequisite for replacement. Actually, once you have a replacement that  er . . .  well, replaces the old law then the new law prevails. Moreover, with no replacement, all the GOP is left with is silly shutdown stunts. The governing philosophy going forward for conservatives must be “explain and replace.”

Conservatives have listed all sorts of objectionable provisions and offer loads of constitutional and statutory arguments, but they have fallen short in demonstrating why the law is bad and how in the real world it is adversely affecting people. Whom is it hurting? They need to make the case that it is necessary and urgent to replace Obamacare. In short, they must answer the question: “Why is the president wrong when he says Obamacare is working?” That means finding real-world cases and statistical data to show why in practice the law is bad. Then the task is to find a feasible replacement that avoids the results of the law that conservatives found so harmful. Conservatives’ alternative must offer greater choice, lower costs, fewer taxes, and better health-care outcomes.

In assessing the 2016 candidates, voters should look for the candidate(s) with the replacement plan that is fiscally sound. They need to assess who has the skill to get rid of Obamacare and put in something better. If the candidate can’t get past the huffing and puffing stage, their response should be, “Next!” They should not be satisfied with generalities.

Quite so, though of course, I imagine that politicians will continue to rend garments in public because they think that by doing so, it will be easier for them to get votes.

Let us now turn to Obergefell v. Hodges, in which the Court determined that same-sex marriages are constitutionally protected. As a longtime proponent of same-sex marriage, I fully and completely applaud this decision; it is entirely justified legally, and it from a policy standpoint, it is in keeping with the ethics and morals of a great nation. As far as I am concerned, there is no strict scrutiny or rational basis justification for denying same-sex couples the right to marry. None. As such, I am overjoyed by the result in Obergefell.

However, there may be some reasons to be concerned about the majority’s reasoning in Obergefell, notwithstanding one’s happiness regarding the result in the case. Ilya Somin explains. To be sure, I disagree with Professor Somin’s belief that laws banning same-sex marriage could pass rational basis scrutiny; while a rights-limiting governmental act almost always prevails under rational basis scrutiny, in this case, I don’t think that there is any rational basis attached to a legitimate government interest that would justify the frustration of same-sex marriage. The following point from Professor Somin is a very interesting one indeed:

In previous gay rights decisions, such as United States v. Windsor (2013), Kennedy has suggested that discriminatory laws should get a kind of heightened rational basis scrutiny if they were in large part motivated by animus against gays and lesbians. Many observers, myself included, thought that he might adopt a similar rationale in today’s decision. No one can doubt that anti-gay animus is a major factor in opposition to same-sex marriage, even if it does not extend to all opponents. Remarkably, however, the word “animus” does not even occur in the 100 pages of majority and dissenting opinions in today’s case. Kennedy notes the history of anti-gay prejudice and discrimination, but does not claim that it justifies applying a higher level of scrutiny. Indeed, he doesn’t really make clear what level of scrutiny applies at all.

Ultimately, Kennedy does not clearly conclude that either the Due Process Clause or the Equal Protection Clause by itself creates a right to same-sex marriage. Rather, his claim is that the combination of the two somehow generates that result, even if neither can do so alone. If a sufficiently important right (Due Process Clause) is denied for discriminatory reasons (Equal Protection), then the Fourteenth Amendment has been violated. However, both the criteria for what makes the right important enough, and the criteria for proving discrimination seem extremely vague. Thus, it is difficult to tell what – if, indeed, any – implications this ruling will have for future cases. The dissenting justices, for example, argue that it might create a rationale for a right to polygamy. This seems foreclosed by the wording of Kennedy’s opinion. But, as noted, above, it may not be by the logic of his reasoning.

As court opinions go, I prefer Judge Richard Posner’s stinging and powerful defense of same-sex marriage to the opinion issued by Justice Kennedy.

Again, there is politics involved regarding this ruling. I’ll just focus on one particular bit of the political fallout: Hillary Clinton, in her quest to be the next president of the United States, has decided to try to act as though she has been for same-sex marriage all along. Not so. Indeed, Clinton has changed her position on the issue a number of times, even while pretending that she hasn’t. To put matters mildly, this does not constitute a profile in courage. And no one should think that it does, especially when it comes time to cast votes to determine the identity of the next president of the United States.

(Photo Credit.)


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