I am tempted to scream “STFU” once again to the Supreme Court, but Linda Greenhouse has said it in a much more refined and powerful way

Despite a poorly drafted statute, the Fourth Circuit in King v. Burwell held that the Affordable Care Act (ACA), as interpreted by the Internal Revenue Service, allowed for subsidies to participants if they purchased the insurance on a federal, rather than, a state exchange. Then, the Supreme Court decided to review that case. There was no split in the Circuits. There is no urgency to grapple with a simple question of statutory interpretation.

While it is true that a panel of the D.C. Circuit had gone the other way, that decision was vacated pending an en banc hearing. Why then did the Supreme Court take King v. Burwell for review now? Professor Bickel, the law professor who gave us the elegant theory of “passive virtues,” would have shaken is head in stunned disbelief. Indeed, it is almost like the members of the Court are looking for a fight.

Linda Greenhouse, with whom I seldom agree, has written a long article on this subject in the New York Times.  I urge you to read it. She concludes her powerful piece this way:

So this case is rich in almost every possible dimension. Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.

Like Ms. Greenhouse, I, too, am about to surrender. At the Supreme Court, currently dominated by Justices nominated by Republican Presidents, five of the Justices speak and write glowingly about judicial modesty and restraint. There is increasing evidence that this is empty rhetoric. At the Court, law has seemingly become politics by another name.

Like Ms. Greenhouse, the Court’s “activist” behavior depresses me no end. I hate admitting that I am and have been a naive dumb ass.

RGK

PS For what it is worth, I honestly don’t care whether the ACA lives or dies.

 

 

Once more unto the breach but briefly

There is a race to get to the Supreme Court again on the ACA. This time the question is whether covered individuals get a subsidy if they bought the insurance on an exchange created by the federal government for a state because the state elected not to do so. The issue is purely one of statutory construction. Linda Greenhouse, who is generally not my favorite commentator, has a good explanation of this race here.

Remember my post on the Hobby Lobby case?  In that post, I suggested that the Supreme Court should be more attentive to Alexander Bickel’s “passive virtues.” This most recent ACA argument–fought out now in the D.C. and Fourth Circuits–gives the Supreme Court an opportunity to live up to Bickel’s advice. Here’s how:

  • Every time a Circuit court changes the status quo–rules for the ACA opponents–the Supreme Court should stay the case.  Remember, as Bickel would, that a ruling against the ACA frustrates the will of the people as expressed by Congress, even though Congress passed the law with the narrowest of margins.
  • The Supreme Court should not take any ACA case on the federal vs state exchange issue until every Circuit court has ruled. There is no harm in waiting since a stay and the status quo would mean simply that insurance buyers would continue to get the intended subsidy and the opponents suffer nothing but the opportunity to make their statutory construction argument as quickly as they would like. There is even the possibility that the Court could avoid the question entirely if Congress, in the interim, cleared up the alleged statutory ambiguity.

Delay, delay, delay should be the mantra of the Court. Since both conservative and liberals, to their shame, now endorse the idea that law is merely politics by another name, the Court should do everything in its power to push back hard against such bilge. The world will not fall apart if the Supreme Court takes a “wait and see” attitude that lasts several years. More time to nap is almost always a good thing.

RGK

Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases

In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.*

The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’spassive virtues“–that is, not deciding highly controversial cases (most of the time) if the Court can avoid the dispute.** What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases?  What harm would have befallen the nation? What harm would have befallen Hobby Lobby family members who would  have been free to express their religious beliefs as real persons? Had the Court sat on the sidelines, I don’t think any significant harm would have occurred. The most likely result is that one or more of the political branches of government would have worked something out. Or not. In any event, out of well over 300 million people, who would have cared if the law in different Circuits was different or the ACA’s contraception mandate was up in the air?

Next term is the time for the Supreme Court to go quiescent–this term and several past terms have proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.***

*“Americans continue to take a dim view of the U.S. Supreme Court’s performance, perhaps in part because most still think the justices base their decisions on their own political agenda rather than the law.” Rasmusssen Reports, (Tuesday, June 24, 2014) (Only “26% Rate Supreme Court’s Performance Positively.”).

**Bickel was not trying to protect the Court itself. On the contrary, he realized that there were “hot button” cases that an anti-democratic Court would of necessity be required to resolve. It was for those rare “fate of the nation” cases, where the Court’s legitimacy mattered most to public acceptance of a really important decision, that required the Court to conserve this very scare resource.

***Thanks to June Edwards, one of the smartest lawyers I know, for stimulating this post last evening (July 4, 2014) as we sat on her pleasant patio overlooking a fire works display that illuminated the entire City of Omaha from our perch in the western hills. By the way, Charlie, the dog, was fine because Joan must have fed him 3 or 4 burgers plus all manner of other treats.

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