“A Revolutionary Committee”: Time For Some Candor From The Supreme Court
In most of the cases it decides, the Supreme Court is what it presents itself as: a court of law. The justices apply preexisting rules and standards set forth, for example, in the Constitution and statutes passed by Congress, to a dizzying array of human and institutional behaviors.
But in many highly contested cases, especially those involving the definition of broad-based rights, the Supreme Court is only slightly more a court of law than the House of Representatives or the Senate. Here the justices are often covertly and ashamedly quasi-legislative, actually deciding what sort of a society they wish to call into being, designating winners and losers on the basis what they want or hope will be best.
A powerful mythology keeps the Supreme Court and its constituencies from acknowledging this. Sore losers often claim they have been cheated by life-tenured federal judges, but such complaints are promptly forgotten because today’s angry critic is tomorrow’s triumphant victor, suddenly extolling the fairness of the justices.
Judges, lawyers and the interested public usually end up colluding in promoting the idea that when the Supreme Court decides that corporations have the same speech rights as natural persons, or that there need not be a recount in a contested presidential election, or that sodomy cannot be a crime, or that racial segregation in education is not only abhorrent but a violation of the Constitution, the rule of law, not the rule of men, is in operation.
The core notion we cling to is basic civics. Though chosen democratically, the justices are not elected. The information they receive and their legitimacy are rightly circumscribed, the former by laws that surround the way decisions are reached, and the latter by their unaccountability. It is feared that if the Supreme Court talked about what serious observers concede, that many major rulings are a result of value choices made in a legal context rather than on strict application of a legal rule or precedent, the ensuing contradictions would undermine the public’s acceptance of its decisions.
Justice Sonia Sotomayer came as close as justices of the Supreme Court ever do to crossing this line when she pointed out the glaring inconsistency between the court’s assurances in the Hobby Lobby contraception case and a decision granting Wheaton College an injunction four days later. Despite becoming instantly famous, her blunt language — “Those who are bound by our decisions usually believe they can take us at our word. Not so today.” — stops far short of what an elected politician might say in a similar situation.
Deeply embedded in the discourse that follows decisions in epochal cases is talk about the way the Supreme Court’s reasoning connects to its conclusions and the practical consequences of the ruling. All can condemn or praise the work of the Supreme Court, but only entrenched partisans are likely to claim that the decision is purely political.
What Supreme Court majorities never admit is that the past is so contingent, and the choices made by other governmental actors so unclear, that nothing is left for the Supreme Court to do but what it thinks best under the circumstances. The thought is that it would be institutionally damaging to admit that the justices just choose the reasonable and wise course, in effect conceding that they truly act as a “revolutionary committee,” as A.A. Berle once memorably put it. Given such an admission, would the next voice say, “Why not leave these choices to the elected?”
But maintaining the myth is costly. Because both unhappy losers and Supreme Court analysts know that all too often the threads of the law said to dispose of a case really stand only as a thin cover of justification (rather as an honest search for solution), the result is large-scale cynicism. Law students learn early in their first year the difference between the language of opinions and what really cuts the mustard. Practicing lawyers know well the difference between rhetoric and reality.
This gap between actual and masked reasons for a decision muddies the waters and inhibits healthy debate. And it is unnecessary. Perhaps there was a time when, in order to respect the law, the public had to believe that it was found somewhere outside our judges, a “brooding omnipresence,” as it was called, but no longer. Given the massive exposure in the media to what passes for law making, people today are not quite so naïve.
More importantly, we need the justices to do more of what they do well. A deliberative process responsive to objective evidence and narrowed to real controversies is a paramount governmental function. There is probably no better way to meet the need to manage the existential controversies of a complex society than a judicial process that presents the true bases of decisions. What is no longer sustainable is the illusion that in these major cases the justices are merely the mouthpiece for decisions made by Congress or settled long ago by James Madison and his colleagues.
By: Michael Meltsner, Matthews Distinguished Professor of Law at Northeastern University School of Law; The Hoffington Post Blog, July 25, 2014
“A Collective GOP Orgasm”: Today’s Conservative Obamacare Baloney Debunked
If you were perusing the conservative twitter-sphere this morning, you would have witnessed a kind of collective orgasm, as it was discovered that back in 2012, MIT economist Jonathan Gruber gave a talk to a small group in which he seemed to support the analysis of the two judges on the D.C. Circuit who ruled this week in Halbig v. Burwell that the subsidies for buying health insurance under the Affordable Care Act should go only to people who live in states that set up their own insurance exchanges. Since Gruber advised Mitt Romney on the creation of Massachusetts’ health reform (which became the model for the ACA) and then advised the White House and Congress during the preparation of the ACA reform, conservatives are now convinced they have their smoking gun: The law, they contend, was always designed to deprive millions of Americans of subsidies, and was in fact never meant to achieve that “universal coverage” that everyone involved said was its goal.
Up to the point where the Supreme Court rules on Halbig, those conservatives will be citing Gruber’s 2012 comments. A lot. But the idea that something Gruber said in response to a question in front of what looks to be around 20 people is more relevant than literally everything else that happened during the drafting and debate over this law’s passage is, to put it plainly, insane.
Let me provide a partial list of people who spent over a year between the beginning of the debate over health-care reform and the passage of the law talking about the ACA, but never mentioned what was supposedly the intent of Congress that people in states using the federal exchange would be deprived of subsidies:
- Barack Obama
- Kathleen Sebelius
- Harry Reid
- Every other Democratic senator
- Nancy Pelosi
- Every other Democratic House member
- Every health-care analyst in America
- Every health-care reporter in America
- Every Republican in the Senate
- Every Republican in the House
- Every conservative opponent of the law
Ezra Klein, who wrote as much about health-care reform during this period as anyone, tweeted this morning that he interviewed Gruber dozens of times, and not only did Gruber never mention this issue, “[t]he same is true for literally everyone else I interviewed. I never heard a single person say subsidies don’t work in federal exchanges.”
As for Gruber himself, this morning he spoke to Jonathan Cohn, and here’s what he told him:
I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it.
During this era, at this time, the federal government was trying to encourage as many states as possible to set up their exchanges. …
At this time, there was also substantial uncertainty about whether the federal backstop would be ready on time for 2014. I might have been thinking that if the federal backstop wasn’t ready by 2014, and states hadn’t set up their own exchange, there was a risk that citizens couldn’t get the tax credits right away. …
But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.
There are few people who worked as closely with Obama administration and Congress as I did, and at no point was it ever even implied that there’d be differential tax credits based on whether the states set up their own exchange. And that was the basis of all the modeling I did, and that was the basis of any sensible analysis of this law that’s been done by any expert, left and right.
I didn’t assume every state would set up its own exchanges but I assumed that subsidies would be available in every state. It was never contemplated by anybody who modeled or worked on this law that availability of subsidies would be conditional of who ran the exchanges.
Cohn, too, says he never spoke to anyone who mentioned this before the Halbig lawsuit. If this was actually what Congress thought the law would do, then liberals would have been freaking out about this provision for years, because it would mean that millions of people wouldn’t be able to get coverage. And conservatives would have been crowing about it for years, for the same reason. But nobody on either side was, because it was never part of Congress’s intent. It was a mistake, and one contradicted by multiple other provisions in the law.
I have no doubt that when the Halbig case is re-argued before the full D.C. Circuit, either the plaintiffs’ attorneys or one of the conservative judges will bring up Gruber’s 2012 comments. Let’s just hope it gets shot down like the baloney it is.
By: Paul Waldman, Contributing Editor, The American Prospect, July 25, 2014
“A Conservative Judiciary Run Amok”: Using Judicial Sophistry As An Instrument Of Anti-Democratic Sabotage
Retired Supreme Court Justice John Paul Stevens captured our ideal when he wrote of the judge as “an impartial guardian of the rule of law.”
By effectively gutting the Affordable Care Act on Tuesday, two members of a three-judge panel on the D.C. Circuit Court of Appeals showed how far right-leaning jurists have strayed from such impartiality. We are confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government.
Fortunately, the D.C. Circuit ruling is unlikely to stand. On the same day the D.C. panel issued its opinion, a three-judge panel from the 4th Circuit ruled unanimously the other way, upholding the law.
There is a good chance that the 11-judge D.C. Circuit will take the decision away from its panel — something it is usually reluctant to do — and rule as a full court to affirm the ACA as commonly understood. It is virtually certain that a majority of the court’s members disagrees with the panel’s convoluted reading of the law and wants to avoid creating a needless conflict in jurisprudence with the 4th Circuit.
When Congress wrote the health law, it envisioned that the states would set up the insurance exchanges where individuals could purchase coverage. But knowing that some states might not want to set up these marketplaces themselves, it also created a federal exchange for those that bowed out. There are 36 states under the federal exchange.
The law includes a mandate requiring Americans to buy health insurance and subsidizes those who need help to pay their premiums. The law falls apart without the subsidies, which go to its central purpose: providing insurance for those who cannot afford it.
But the law was not particularly well-drafted. It’s not uniquely flawed in this respect. As Judge Andre M. Davis wrote in a concurrence to the 4th Circuit ruling: “Neither the canons of construction nor any empirical analysis suggests that congressional drafting is a perfectly harmonious, symmetrical and elegant endeavor. . . . Sausage-makers are indeed offended when their craft is linked to legislating.”
Here’s what the two Republican-appointed judges on the D.C. panel did to make the sausage disappear entirely: Because the subsidies are established in a part of the law referring to state exchanges, the D.C. Circuit ruled that no one on the federal exchange is eligible for them.
Poof! There goes the health law in most of the country.
Never mind that many other parts of the law clearly assume that the subsidies apply to people on both the state and federal exchanges. And never mind that during the very long debate over the ACA, no one ever said otherwise.
In ruling to kill the subsidies for an estimated 5 million people on the federal exchange, Judge Thomas B. Griffith invents the idea that Congress may have intended to deny subsidies to people in states that didn’t set up their own exchanges as an incentive for those states to do so. But as Judge Harry T. Edwards writes in his dissent, the “incentive story is a fiction, a post hoc narrative” to justify the idea that “Congress would have wanted insurance markets to collapse in states that elected not to create their own exchanges.”
The extreme judicial activism here is obvious when you consider, as the 4th Circuit did, that even if you accept that there is ambiguity in the law, the Supreme Court’s 30-year-old precedent in Chevron v. Natural Resources Defense Council held that in instances of uncertainty, the court defers to federal agencies rather than concocting textual clarity when it doesn’t exist.
Griffith has to pretend that his cramped reading of the written text — again, a reading utterly disconnected from the reality of the law’s history — is the only one possible. From there, he goes on to force the government and those losing their subsidies to live with a patently absurd result.
Edwards’s logic is compelling: The Griffith decision “defies the will of Congress” and goes along with a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act.”
As the 4th Circuit’s Davis put it, the law’s opponents are trying “to deny to millions of Americans desperately needed health insurance through a tortured, nonsensical construction” of the law.
We cannot use judicial sophistry as an instrument of anti-democratic sabotage.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, July 23, 2014
“The Limited Role Of The Courts”: Why Obamacare Probably Isn’t Doomed
The Affordable Care Act took a potentially serious hit today when the D.C. Circuit Court of Appeals struck down a rule that extended the law’s health-care subsidies to residents of the three-dozen states where the federal government runs a health insurance exchange.
But the fact that another court of appeals upheld the same rule on the same day shows that the legal issue is very thorny and will very likely be ultimately resolved by the Supreme Court. And the administration probably will come out ahead in the end.
The controversial part of the law says that the government can provide subsidies for health insurance bought on exchanges “established by [a] State.”
The argument against the administration’s rule is straightforward: if a state refuses to set up an exchange, forcing the federal government to operate it instead, then the subsidies aren’t available. That legal reading of the statute makes some sense, because Congress may have wanted to encourage states to create exchanges with the carrot of promising subsidies for the states’ residents.
But the courts are required to uphold the rule if the law is ambiguous and the administration’s position is reasonable. The Supreme Court will probably uphold the rule under that lax standard.
Here’s why. Other provisions of the statute reference an exchange “established by [a] State,” but really include the federal government. Another section of the law refers to a state-run exchange when everyone agrees that it means to include the federal government too. Also, the law actually requires every state to set up an exchange, and it refers to all the exchanges as having been established by states. So you can look at the statute as a whole and reasonably read it to extend the subsidies to residents of every state.
It also makes some difference that the section of the law cited by the rule’s opponents is a strange place for Congress to have limited the availability of subsidies, because that section states the formula for tax credits rather than core rules on who gets benefits under the Act. There also isn’t much evidence to suggest that Congress actually was intending to use the subsidies to encourage states to create exchanges.
We won’t have a final answer for a while. The parties can ask all the judges of both of the courts of appeals that issued today’s rulings to rehear the case. The administration has the better chance, because recent appointments to the court that struck down the rule tilt the court to the left. But it may be that both courts will see that Supreme Court review is inevitable and stand aside to let the Justices decide the issue.
The issue is so close and contentious that it is basically inevitable that the Supreme Court will have to resolve it. If the case goes straight to the Supreme Court, we will get a final decision within a year; otherwise, it will probably be two. My best guess is that a majority of the Justices will cite the limited role of the courts and rule for the administration and uphold the rule by the same5-to-4 majority that rejected the major constitutional challenge to the law two years ago.
By: Tom Goldstein, Appellate Advocate, best known as one of the nation’s most experienced Supreme Court practitioners, Co-founder and Publisher of SCOTUSblog; The Washington Post, July 22, 2014
“It’s Not A Game, It’s People’s Lives”: What Today’s Obamacare Ruling Reveals About The GOP
Today in a two-to-one decision a three-judge panel of the Court of Appeals for the D.C. Circuit delivered Republicans perhaps their biggest victory yet in their ongoing legal battle to destroy the Affordable Care Act. This case is far from over — it will probably be appealed to the full appeals court (where today’s decision is likely to be reversed) and then to the Supreme Court. But it demonstrates just how willing Republicans are to lay waste to Americans’ lives if it means they can strike a blow at Barack Obama and his health law.
In some of their challenges to the ACA, there was a legitimate philosophical or practical point Republicans were making. You or I might think the idea that a mandate to carry insurance constitutes the death of liberty is ridiculous, but at least it was a substantive objection. Not so in this case, Halbig v. Burwell. Here, Republicans literally found a legislative drafting error in the ACA that they hoped could be used to deal a near-fatal blow to the law, and two Republican-appointed appeals court judges agreed with them.
In a section of the ACA concerning the subsidies given to low- and middle-income people to buy insurance on the exchanges, the legislation refers to subsidies provided through “an Exchange established by the State.” Since over half the states didn’t create their own exchanges and ended up with the federal exchange, the plaintiffs argue that no one in those states should be eligible to receive subsidies. If they’re successful, it would mean that if you live in Kentucky, which has a state exchange, you can get federal subsidies to buy insurance, but if you live next door in Tennessee, which uses the federal exchange, you can’t.
Now pause for a moment and consider what it is Republicans are asking the courts to do here. They want millions of Americans to lose the subsidies they got this year, in many if not most cases making health insurance completely unaffordable for them, and their justification is this: We found a mistake in the law, so you people are screwed. As far as the Republicans are concerned, it’s like spotting that a batter’s toe missed second base as he was trotting around for his home run, and therefore claiming that they won the game after all.
But it’s not a game, it’s people’s lives. If they succeed at the Supreme Court, people will die. That’s not hyperbole. Millions of Americans will lose their health coverage — 6.5 million by one estimate — and many of them won’t be able to afford to go to the doctor, and many of them will have ailments that go untreated. People will die.
If you want to read a comprehensive analysis of how legally and logically absurd this decision was, I’d recommend this one by Ian Millhiser. Cases like this often turn on Congress’ intent in writing legislation, and in this case there is no question about that intent — at no point in the debate or drafting or voting did anyone say that if a state chose to use the federal exchange then the people in that state wouldn’t get subsidies. But if you read the majority’s decision, you can see the two Republican judges positively luxuriating in the drafting error for page after page, exploring every possible way in which it could trap the government into denying subsidies to people.
Most ridiculously, they assert that there’s just no way to know whether Congress actually intended that people in states using the federal exchange should get subsidies, so their intent can only be inferred by the phrase “established by the State.”
As I said, this is a temporary victory for the ACA’s opponents — the whole D.C. Circuit court is likely to reverse this decision, though what will happen at the Supreme Court is less than clear. But when you see Republicans raising glasses of champagne to congratulate themselves on how clever they are, remember what it is they’re celebrating. It isn’t that conservatism won some meaningful philosophical victory, or that they’ve managed to make the country a better place. All that’s happening is that they may have succeeded in taking health insurance away from millions of Americans.
By: Paul Waldman, Contributing Editor, The American Prsospect; Published at The Plum Line, The Washington Post, July 22, 2014
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