“John Roberts To America; I’m In Charge Here”: A Blunt Message To Politicians To Stop Abusing The Judiciary
When, just over two years ago, right-wing superlawyer Michael Carvin filed his first lawsuit seeking to deny Affordable Care Act tax credits to millions of individuals in states with federally operated exchanges, die-hard ACA opponents saw one reason why the Supreme Court might use an isolated four-word phrase to sabotage the ACA—that all five conservative justices would vote their political gut. As decision day approached, many ACA supporters (including me) suspected that the challengers’ political appeal might only be overcome if one or two of the conservative justices—Anthony Kennedy and/or Chief Justice John Roberts—would embrace states rights–based constitutional arguments to save the law.
Last Thursday, when the Court issued its decision in the case, King v. Burwell, all these hopes and fears about the political and ideological vectors at play, specifically, with Roberts, turned out to be dead wrong. The chief justice had bigger fish to fry—personal, institutional, and policy priorities—that led him to uphold the Obama administration’s decision to make tax credits available nationwide:
- Asserting his personal leadership of the Court, by mobilizing a 6-3 bipartisan majority, and taking the heat for writing a no-holds-barred, decisive opinion in the most politically divisive case on this year’s docket;
- Continuing an ever more evident drive to advance the Court’s power vis-à-vis the two elected branches, as the final decider and major direction-setter on the nation’s most fought-over policy issues;
- Sending a blunt message to conservative activists, lawyers, and politicians to stop abusing the judiciary as a handy back-door gimmick to reverse political defeats they have been unable to reverse in political arenas—in particular, to stop bringing cases designed to “undo” the ACA;
- Sending a subtle, gratuitous, but nevertheless quite discernible piece of policy advice to Republican politicians and policy-makers, in the form of a reminder of the ACA’s Republican ancestry in Massachusetts’ 2006 Romneycare reform law, referencing that model’s conservative credentials as a way to “expand coverage” while relying on private health insurance markets.
As the litigation made its way toward the high court, ACA opponents had been upfront about their bet that conservatives on the bench shared, and would act on their animus to the president’s signature legislative accomplishment. In September 2014, after the full D.C. Circuit Court of Appeals had voted to vacate and rehear a 2-1 decision in his favor, Carvin candidly opined that raw partisan politics would drive the Supreme Court to preempt the appellate court’s consideration of the case: “I don’t know that four justices, who are needed to [grant review of the case] here . . . are going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think.” Asked if he believed he would lose the votes of any of the five conservative justices, he smiled and said, “Oh, I don’t think so.” Carvin’s cynical take was hardly unique; some of his allies openly forecast that Roberts would feel a need to appease conservatives who excoriated him for his 2012 vote to save the ACA.
Last Thursday, Roberts dashed conservative hopes and liberal fears of a partisan political decision. To the contrary, as conservative blogger Josh Blackman ruefully explained on a Federalist Society post-mortem conference call, the decision effectively seemed to elevate the ACA into a kind of “untouchable super-statute that is beyond reach.” Blackman characterized Roberts’s message as, “This is over . . . We’re through”—meaning, we’re through hearing cases ginned up by our clever lawyer friends to precipitate judicial de facto repeal of the law. Roberts’s brush-off of these core allies was foreshadowed by remarks he made at the University of Nebraska a few days before Carvin bared his cynical partisan take on the conservative justices. Then the chief justice said he was “worried about people having [the] perception” that the Court is no less a political body than Congress or the presidency. He attributed this trend to polarization in the elected branches, saying that he did not “want that to spill over and affect us.” Though widely disregarded at the time as standard civics class pap, it now appears clear that Roberts was serious and motivated by clear-eyed concern about the Court’s stature. As he observed in his 2005 confirmation hearings, “It is a very serious threat to the independence and integrity of the courts to politicize them.” King v. Burwell posed just such an institutional threat, and it was his job as chief justice to dispel it.
But to Roberts, protecting the Court’s reputation does not mean staying above the fray, much less retreating to the sidelines. On the contrary, the decision showed how focused he is on enhancing the Court’s power, well understanding that its non-political image is, ironically, essential to its clout. His opinion reasoned that, read in the context of the overall statute and Congress’ “plan,” the four-word phrase “established by the state” on which the challengers relied was “ambiguous.” When statutes are ambiguous, long-standing black-letter law requires courts to defer to an agency’s reasonable interpretation, rather than impose an interpretation that the court considers correct. But Roberts did not take that route. Instead, he said, the Court must decide for itself what the law means, on the ground—never before asserted so categorically—that the availability of ACA tax credits is “a question of deep economic and political significance that is central to this statutory scheme.” Of course, he then held that the administration’s interpretation was the right call. Administrative law experts were quick to note that, in the words of Ohio State law professor Chris Walker, “King v. Burwell—while a critical win for the Obama Administration—is a judicial power grab over the Executive in the modern administrative state.”
Roberts’s yen to project the Court as a player on the policy question of “deep economic and political significance” posed by the case was also manifest in another theme of his opinion, understated but audacious. Not only did he note the ACA’s roots in Romneycare, but he underscored that law’s record of effectiveness in reducing the “uninsured rate in Massachusetts to 2.6%, by far the lowest in the Nation,” and then went on to observe that the ACA “adopts a version of the three key reforms that made the Massachusetts system successful” (emphasis added), including the affordablity tax credits at issue in King, as well as the “individual mandate” that Roberts upheld as a pay-or-play tax incentive in 2012 in NFIB v. Sebelius. This and other notably favorable descriptions of the ACA in Thursday’s opinion seem aimed at Republican policy-makers and politicians. His message recalls his 2012 approval of the law’s individual mandate as an optional tax incentive—preferable, he wrote, because the “taxing power does not give Congress the same degree of control over individual behavior” as a Commerce Clause–based absolute mandate.
As I wrote after the NFIB decision, Roberts took this policy argument from a 2011 D.C. Circuit opinion by fellow George W. Bush appointee Judge Brett Kavanaugh; that opinion favorably portrayed the ACA as potentially “the leading edge of a shift” to “privatize the social safety net and government assistance programs.” In these opinions, Kavanaugh and Roberts seem to be pitching a line favored in conservative policy circles prior to the recent rise of tea party-style anti-government absolutism—keep and expand the national safety net, but privatize and regulate it through incentives rather than commands. With his decisions in NFIB v. Sebelius and King v. Burwell, however, John Roberts has gone further than merely touting that big-government conservative model for safety net governance, casting the ACA as a product of that model. He has used his power to entrench it—against demands from the left for a command-and-control version of the ACA individual mandate, and against conservatives’ strategy of killing the ACA in court. This, Roberts concluded, is “the type of calamitous result that Congress plainly meant to avoid”—and which, the chief justice made crystal clear, he will be loath to permit, in this case and any other challenge the law’s opponents might cook up.
By: Simon Lazarus, Senior Counsel to the Constitutional Accountability Center; The New Republic, June 27, 2015
“The Supreme Court’s Extreme Faith”: The Menendez Case Proves The Supreme Court Was Naive About Campaign Finance Laws
No cameras are allowed inside the main Supreme Court chamber, but on Wednesday, a group of activists—for the second time this year—evaded tight security controls and snuck one in to record themselves causing disorder in the court. Their goal: Decry two of the court’s most controversial rulings on campaign finance, Citizens United v. FEC and McCutcheon v. FEC, which have paved the way for powerful donors and corporations to influence elections.
“Justices, is it not your duty to protect our right to self-government?” a protester is heard yelling in a video posted on YouTube. “Reverse McCutcheon. Overturn Citizens United. One person, one vote.” Court police escorted her out, followed by other protesters, including a man chanting, “We who believe in freedom shall not rest.”
Chief Justice John Roberts was not impressed. SCOTUSblog’s Lyle Denniston, one of the few reporters at the scene, noted he grew impatient and later said, “Oh please,” on top of threatening contempt sanctions against the protesters.
Say what you will of the activists’ stunt or the chief’s reaction—because really, no protest in the world will ever overturn a Supreme Court precedent. But consider what Roberts himself proclaimed in McCutcheon, which turned one year old today: “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner influence over or access to elected officials.”
McCutcheon invalidated something very specific—the limit on the total amount a person can give to all federal candidates during a two-year election cycle—but Roberts didn’t stop there. Time and again he kept singling out blatant quid pro quo arrangements as the only thing Congress could regulate. Not so with meager attempts to “prevent corruption” or curbing “the appearance of mere influence and access.” Those things aren’t as big a deal under the Constitution. Only tit-for-tat corruption is.
Compare that to the other case the protesters targeted, 2010’s Citizens United, a ruling as grand as it was shocking for the dearth of evidence on which it rested: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” The court went on: “The appearance of influence or access … will not cause the electorate to lose faith in our democratic order.”
But it turns out corruption, appearances, and influence-peddling are all at the crux of federal charges against New Jersey Senator Bob Menendez. He was indicted Wednesday on several counts of bribery and other offenses, stemming from an allegedly cozy relationship with Salomon Melgen, a Florida ophthalmologist and longtime friend who is accused of giving lavish gifts to the senator. These included a trip to a luxury hotel in Paris, a stay at an upscale villa in the Dominican Republic, contributions to a legal-defense fund, and more than $1 million in donations to various political action groups supporting Democratic candidates—all in exchange for political favors for Melgen, his business interests, and his numerous girlfriends.
Whether these salacious allegations stick or lead to some kind of plea deal will soon be decided; Menendez pled “not guilty” on all charges Thursday. But a sizeable contribution listed in the indictment calls into question the Supreme Court’s extreme faith that large sums of money not directly given to a candidate fail to amount to corruption.
According to prosecutors, Melgen, through his own company, contributed $600,000 to a political action committee aimed at helping Democrats retain control of the Senate. That’s all well and good under Citizens United,except Melgen allegedly earmarked the money so it went directly to the Menendez re-election campaign. That’s also kosher under campaign regulations, except the indictment alleges Menendez “sought and received” the donation—comprised of two checks for $300,000 each, sent to the super PAC in exchange for Menendez’s assistance in resolving a Medicare-related dispute. Interestingly, the indictment notes that Melgen cut one of the checks on the same day he attended an annual fundraiser Menendez hosted.
The legal process will determine the extent to which the alleged favors and contributions are related. But even if they weren’t and the case went away, the Menendez indictment undermines the Supreme Court’s facile conclusion that merely spending large sums of money—absent a clear showing of quid pro quo—isn’t enough to prove that corruption has taken hold. Or the notion that the mere appearance of influence and access to elected leaders fails to be an interest compelling enough to require strong campaign-finance laws—the kind that governs how big donors and big money behave each election cycle.
Chief Justice Roberts may not be too pleased with the recent protests and security breaches at the Supreme Court, but the Menendez case opens the door for some introspection on how recent campaign-finance rulings are reshaping who calls the shots in our democratic order.
By: Cristian Farias, The New Republic, April 2, 2015
“People Have Told Me About Stops!”: The Chief Justice Has Never Been Pulled Over In His Life
In a little-noticed hearing last month, the Supreme Court considered Rodriguez v. United States, a case involving the Fourth Amendment’s protection against unreasonable searches and seizures. The core issue the justices confronted was how long a police officer could extend a routine traffic stop for purposes of calling in the dogs—drug-sniffing dogs.
At first blush, the question seems uncomplicated and slightly mundane. Who cares about police canines? The vast majority of drivers won’t be drug kingpins or carry illegal contraband in their cars. But the Fourth Amendment doesn’t exist to protect drug traffickers; it protects everyone from police overreach. Whatever the court decides on any Fourth Amendment case—the court accepts a number of them every year—should matter to everyone.
And judging from how oral arguments in Rodriguez played out, you have reason to worry about how the justices will rule. Because for an hour, they grappled, interrupted one another, suggested potential rules, posed lengthy hypotheticals, and in the end couldn’t seem to reach any consensus on how to decide the case. Viewed charitably, the hearing was a hot mess.
The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”
There was laughter in the courtroom. And the lawyer, recently retired federal public defender Shannon P. O’Connor, played along and responded with humor: “I’ve had friends that say the same thing, Mr. Chief Justice.”
But to anyone who closely watches the court’s jurisprudence on the Fourth Amendment, there’s nothing funny about Roberts’ naiveté about traffic stops, let alone his ignorance of the real frustration that comes with being kept even a second longer than necessary. The “seizure” of a person, in constitutional lingo, is in fact part and parcel of all of our recent conversations about policing in America. New York’s stop-and-frisk saga, the death of Michael Brown, and incidents involving use of force by police all implicate police departments’ and courts’ interpretation of the Fourth Amendment.
Justice Sonia Sotomayor was not amused. Later in the arguments, she turned to Roberts and said, “Chief, I’ve been stopped … [and] keeping me past giving me the ticket is annoying as heck, whether it’s five minutes, 10 minutes, [or] 45.” She placed a lot of emphasis on the word heck.
Sotomayor knows a little something about stops, and no, it has nothing to do with her upbringing in the Bronx or the fact that she has been pulled over before. She is the only sitting justice who actually has criminal trial experience—first as a prosecutor, and later as a district judge in Manhattan. She has presided over hearings calling for the suppression of illegal evidence, over criminal trials where that evidence was later at play, in civil cases against prison officials and police officers accused of false imprisonment or the use of excessive bodily force. She has seen how the Fourth Amendment plays out in real life.
This first-hand experience may explain why she was the lone dissenter in another case involving brushes with law enforcement. In December, she and Roberts were on opposite ends in Heien v. North Carolina, a case that green-lighted reasonable “mistakes of law” as the basis for a traffic stop. Though ignorance of the law is no excuse for an average citizen under any circumstance, the Supreme Court decided that it is a valid excuse for an officer who suspects you may be committing some offense, even if the offense is not on the books.
“To be reasonable is not to be perfect,” Roberts wrote, “and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”
Roberts’ phraseology about “fair leeway” is lofty, but it turned the meaning of the Fourth Amendment on its head, confounding its role as community protection by the government rather than from the government. And “reasonableness,” at least in the context of policing, has taken on a life of its own at the Supreme Court—leading one scholar to note that its invocation is merely a cover for the court’s “own values regarding the need for the particular police practice at issue.”
Though Roberts’ deference towards police ignorance won the day in Heien, Sotomayor did take an opportunity to remind her colleagues that the ruling will have real-life effects on those most likely to endure uncomfortable encounters with the police: minorities and communities of color. She wrote that the court’s decision has the potential of “further eroding the … protection of civil liberties in a context where that protection has already been worn down.” She called these the “human consequences” of the court’s rulings on the Fourth Amendment and wondered “how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.”
Roberts, for all his intelligence, is ill-equipped to wrap his brain around that scenario; he has never been stopped by the police before. (The Supreme Court press office did not reply to a request for confirmation of Roberts’ lack of experience in this regard.) He did author a landmark ruling last year on the necessity of warrants prior to rummaging through a cellphone, but think of the factual premise: He probably does have a smartphone with extremely personal information.
Not so with close encounters with police. To assume that he and the rest of the court will issue a principled ruling on how many minutes a traffic stop can be extended—the answer, in a perfect world, should be zero—ignores that the court has already ruled constitutional far more invasive government practices, all under the guise of reasonableness, pat-downs and body-cavity searches among them.
America’s attention will turn to Obamacare and same-sex marriage when the Supreme Court entertains them later in the year. It is little cases like Rodriguez—easily lost in the news cycle—that have the greatest potential to undermine further the already-strained relationship between the community and the police.
By: Cristin Farias, Slate, February 11, 2015
“If Boehner Sues Obama, John Roberts Wins”: Enhancing Judicial Power At The Expense Of The Elected Branches
The story on House Speaker John Boehner’s lawsuit against President Barack Obama is pretty simple: regardless of whether the administration overstepped, what’s at stake is whether the courts are being empowered at the expense of the elected branches of government.
For starters, there’s zero evidence that Obama has been unusual in his use of executive powers. If he’s overdone it, then all the recent presidents have done so, too. The idea that he’s some sort of tyrant who acts differently than other modern presidents is nonsense.
In fact, It’s perfectly normal for presidents and executive branch departments and agencies to make broad interpretations of law that look a lot like legislating. It’s how the system works, and pretty much how it always worked. Thus Richard Neustadt’s famous claim that the system isn’t “separation of powers,” but separated institutions sharing powers.
Nonetheless, there are rules constraining how laws may be interpreted, and it is possible that in specific instances, the administration may have acted beyond what the law allows.
Indeed, experts have made the case that this kind of overreach occurred with the delayed implementation of the employer mandate in the Affordable Care Act (which, apparently, is going to be central to the House Republicans’ lawsuit), though other experts disagree.
In any case, it would be unprecedented, and in fact would constitute a significant change to the constitutional system, if the courts allowed Congress to sue the president over the ACA delay.
The technical issue is “standing.” For the courts to consider a lawsuit, the person or group bringing the suit has to show they were harmed in some direct way. So, for example, in the recent recess appointment case, Noel Canning Corp. was able to show that it had directly been harmed by an action taken by members of the National Labor Relations Board who had been recess-appointed. Generally, the courts have ruled (Vox has a good explainer on this) that Congress isn’t eligible to sue the president just because it doesn’t like what he’s done.
What Boehner is claiming now is that Congress, or the House of Representatives in this case, should be able to sue the president for not following the law if no one else would be able to do so.
If that succeeds, however, the big winner in the long run wouldn’t be Congress. It would be the courts.
By the logic of Boehner’s own action (despite what he says), this isn’t about a tyrannical president refusing to obey the law. If House Republicans believed that Obama was an out-of-control dictator, then they couldn’t also believe that a court ruling would be sufficient to constrain him.
What’s actually happening is that the House doesn’t interpret the law in the same way as the president, and the question is how to resolve the variance. Normally, each branch has an opportunity to interpret the law (those separated institutions sharing powers again), but doctrines such as standing limit the courts’ ability to intervene.
If, however, they can intervene whenever a house of Congress is unhappy, then the courts get a a much more active role in determining what the laws say. And why just a house of Congress? What if the president sued Congress, for example, if it failed in its obligation to produce appropriations bills on time? Instead of a government shutdown, would we get an injunction and then a judicial act of appropriations, with someone appointed by Bill Clinton or Ronald Reagan making 302(b) allocations by judicial fiat? Or perhaps we’d wind up with individual senators jurisdiction shopping, looking for a friendly judge to overturn some fight they lost in committee or on the Senate floor. Those kinds of setbacks are common for senators and executive branch departments; the only thing that prevents the losers, or whole chambers that lost fights in conference, from directly appealing to the courts is that the courts have a doctrine against intervening.
So what can Congress do? If the problem were simply a president who failed to follow the law, then the only real choices would be either to live with it, or impeachment and conviction. But if the problem is merely that the president interprets a law in a way that Congress doesn’t like, then the obvious remedy, as presidency scholar Andrew Rudalevige said recently, is “for Congress to change the law to remove presidential discretion” (I argue the same here).
So put aside the question of whether the administration improperly interpreted the law (it might have). Put aside, too, the silliness of House Republicans attempting to force the president to impose a policy, the employer mandate, which no Republican actually wants to enforce. And put aside the reality that by the time this lawsuit is decided it may well be moot, at least if the mandate takes effect as currently planned. This is about enhancing judicial power at the expense of the elected branches, and it’s a very bad idea.
By: Jonathan Bernstein, Ten Miles Square, The Washington Monthly, July 12, 2014
“Radical Libertarianism Reshaping The Bench”: John Roberts’ Supreme Court Is The Most Meddlesome In U.S. History
For the third straight July, the Supreme Court left court-watchers scratching their heads about whether the Court lived up to its reputation as the “most conservative” in generations, if not ever. In the New York Times, former Obama Acting Solicitor General Neal Katyal hailed “The Supreme Court’s Powerful New Consensus.” Liberal experts tended to echo Slate’s Emily Bazelon in dismissing such revisionists as hoodwinked by “the devastating, sneaky genius of John Roberts’ [superficially anodyne but right-tilting] opinions.”
What strikes me is a libertarian streak in the justices’ opinions. On civil liberties, where right- and left-leaning libertarians concur—in particular, Fourth Amendment protection for smartphones—the Court moved the law to the left. But, likewise reflecting libertarian ascendance, the Court continues to veer sharply right on issues touching on corporate autonomy and regulation of business. Most importantly, this term’s cases confirm a critical but generally overlooked facet of twenty-first century libertarian jurisprudence. It is not just about reclaiming what Randy Barnett famously called the “lost Constitution.” Less visibly but often more consequentially, libertarian academics, advocates, and judges have long advocated thrusting the courts into much more aggressive roles in resolving the details of messy non-constitutional disputes—in interpreting statutes, and, in particular, in scrutinizing and micro-managing executive and regulatory agencies’ applications of the laws they administer. Here, the not-always-tacit agenda has been to gum up the works of progressive programs that, realistically, cannot be repealed or invalidated outright.
A window onto this Court’s reactionary drift opened during a testy exchange at an oral argument six months ago on January 21. The case was Harris v. Quinn, which involved a challenge to the authority of state governments to permit public employee unions to collect fees covering the costs of negotiating on behalf of non-members they are legally required to represent. Choosing her words pointedly, Justice Elena Kagan questioned the challenging non-members’ counsel:
Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State, and people have disagreed. … And is it fair to say that you’re suggesting here … that, for 64 years, people have been debating the wrong question … because, in fact, a right-to-work law is constitutionally compelled? (emphasis added)
The challengers’ counsel, a staff attorney for the National Right to Work Legal Defense Foundation, did not flinch. “In the public sector,” he responded, “Yes, … compulsory fees are illegal under the First Amendment.”
When the Court finally released its decision, on the final day of the term, June 30, it did not exactly dial back those 64 years, at least not for all public workers and workplaces nationwide. Justice Alito’s 5-4 majority decision barred the imposition of union fees on non-members, but only with regard to a novel category he created—“personal homecare assistants,” or nurses and other providers paid by state governments with Medicaid funds, to treat disabled and poor elderly patients in their homes.
But what matters about this case is not the answer the conservative majority gave on its particular facts, but the question they chose to answer. As Justice Kagan noted, that question—whether state (or federal) law can authorize public employee unions to distribute the costs of representation across all employees in a bargaining unit, while requiring the union to represent non-union members as well as members—had for generations been completely off the table. The conservative majority has put that fundamental understanding in play, by transmuting the First Amendment—heretofore understood as a safeguard for civil liberties—into a functional regulator of economic relations, and de-stabilizing nearly three quarters of a century of constitutional precedents. These precedents are not technicalities. On the contrary, were the case-law otherwise, all employees, union members as well as non-members, would have every incentive to “free-ride,” and reap the benefits of union representation without sharing in the costs. Public employee unionism would be weakened, if not crippled.
The doctrinal counter-revolution is not confined to labor-management relations. Prior to the New Deal, the Supreme Court pushed an anti-regulatory agenda in the name of safeguarding individuals’ economic liberty. The FDR Court repudiated this tradition in a 1938 decision about milk regulation, United States v. Carolene Products. Carolene Products laid down a landmark a rule: Economic regulatory legislation “is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Harris v. Quinn flagrantly violates that rule. States surely have a “rational basis” for ensuring fair-share contributions from non-union public employees.
After 1938, through the balance of the twentieth century, and, indeed, well into the twenty-first, Supreme Court majorities never overtly and, only rarely, departed from or implicitly challenged the hands-off economic regulation mandate of rational basis deference. Of course, during those decades, there were recurrent, fiery right-left battles on and about the Supreme Court. But those battles were about the extent to which the Court should actively protect individual civil and political rights, not economic rights. Only a small cadre of libertarian academics and think tanks disputed the consensus confining economic liberty to second-class constituitonal status. No more. No longer marginalized, libertarian-inspired legal ideas are now a force to be reckoned with. That tectonic shift was first proclaimed two years ago in the Court’s opinions in the challenge to the Affordable Care Act’s individual mandate and expansion of Medicaid, even though Chief Justice John Roberts’ controlling opinion largely upheld the law. This term’s decisions reinforce that trend.
Although Harris v. Quinn invoked the Constitution to trump an incontestably rational regulatory law, other important decisions about regulation and the economy this term involved ordinarily below-the-radar questions of statutory interpretation and judicial deference to agency decisions. And libertarian academics’ and advocates’ enthusiasm for replacing Carolene Products-style rational basis deference with active judicial micro-management left an imprint in nearly all of them. For example, reviewing the first tranche of President Obama’s global warming program, Justice Scalia, writing for a seven-member majority, struck down the regulation at issue, and castigated EPA for reading an exception into an assertedly “unambiguous” statutory provision. But the Court then read a similar exception into another statutory term, that yielded 97 percent of the on-the-ground results the agency’s version would have achieved. How could EPA’s version have no defensibly rational basis, and why would the justices not simply defer, if it differed so immaterially from theirs?The answer seems to be that Scalia and his colleagues felt it important to assert their power to substitute their judgment for the agency’s—EPA or any other agency—almost for the sake of doing so.
Similarly, in its two decisions reviewing Affordable Care Act contraception regulations, the conservative majority second-guessed extraordinarily granular Executive Branch policy and factual determinations, substituting their own ideas for configuring a compromise to mesh competing policy goals attributed to two statutes, the ACA and the Religious Freedom Restoration Act. The majority suggested that alternative administrative solutions were readily available, that would, consistent with the Court’s orders, permit employees and students, in institutions averse to including contraception coverage in their health insurance plans, “to obtain, without cost, the full range of FDA approved contraceptives.” Dissenting Justice Sonia Sotomayor, and many health experts, vehemently disagreed. The lasting lesson from these cases is not which side is right, but that the conservative justices are so eager to reach to tackle these policy and factual kerfuffles at all. Such judicial intrusions, into the nitty-gritty of implementing complex, often conflicting statutory provisions, mock landmark decisions—by the Rehnquist Court no less than its more liberal predecessors—that long enforced and repeatedly reaffirmed the post-New Deal consensus mandating judicial restraint and deference to Congressional and Executive legislative and policy judgments.
Looking to the future, most of the battles over preserving the progressive jurisprudence that kept hostile judges from crippling the New Deal, the Great Society, and—so far—the major products of President Barack Obama’s tenure, could well be fought on these non-constitutional fronts. Already, some observers have noted that in several end-of-term opinions, justices on both sides of the Court’s ideological divide have sparred elaborately about methodologies for interpreting statutes and reviewing agency actions. Could these academic-seeming debates constitute “shadow-boxing” over potential high-voltage controversies that could wind up on next year’s docket and beyond? A particular target for speculation in this vein, especially on the right, is a brace of pending cases currently poised for decision in two courts of appeal, in which ACA opponents hope to shut down Healthcare.gov. They claim that a four-word phrase in the Act must be read in isolation, to permit only state-run exchanges, not federally run exchanges in the 36 states that have opted out of setting up exchanges of their own, to provide tax credits and subsidies for low and moderate income applicants for health insurance. So far, that claim has been rejected by the two district courts yet to rule, as contrary to what even Justice Scalia, in his Clean Air Act global warming decision opinion this June, acknowledged as the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Much could depend on whether Justice Scalia and the rest of his conservative colleagues choose to take that “fundamental canon” seriously, if and when the fate of Obamacare is once again on their griddle.
By: Simon Lazarus, The New Republic, July 10, 2014
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