Law & the Courts

Linda Greenhouse Schools the Supreme Court

Marine Lance Corporal Andrew Day, Bravo Company, First Battalion, Ninth Marine Regiment, sits with his detection dog during a patrol in Helmand Province, March 2014. (Photo: Lance Corporal Zachery B. Martin)
She admonishes it to “read the briefs” that apparently she has not.

Linda Greenhouse, a New York Times Supreme Court reporter, stunningly suggests in a recent article that the justices need to be scolded into “reading the briefs” in a pending case. She concludes with an astonishing rhetorical flourish: Like Lucille Ball, the Court will “have a great deal of explaining to do” if it fails to rule in the manner she suggests.

It takes a lot of chutzpah to admonish the Supreme Court in such fashion. If someone is going to do so, she had better make certain that her facts are correct, and that her legal arguments are unimpeachable. Unfortunately, Greenhouse falls far short of those standards. Considering the weakness of her arguments, perhaps she should follow her own advice and read the briefs.

Greenhouse is “plenty disturbed” that the Supreme Court would even deign to hear a case challenging certain Affordable Care Act (ACA) subsidies. She writes that the plaintiffs’ arguments are so frivolous they represent a “partisan war” rather than a legal case and that ruling in their favor would put the Court “in peril.” She is badly mistaken.

The case in question is King v. Burwell, a challenge to an IRS regulation granting federal subsidies under the ACA. Two sections of the act provide for the creation of different types of exchanges. Section 1311 allows states to establish exchanges. Section 1321 directs the Department of Health and Human Services to create federal exchanges in states that elect not to construct their own. The challenged IRS regulation provides subsidies to individuals who purchase insurance on either type of exchange.

The plaintiffs argue that the IRS regulation is invalid, because Section 1401 of the ACA provides authority to subsidize only insurance that is purchased on an “exchange established by the State under 1311.” The plaintiffs contend that an exchange established by the federal government under section 1312 does not meet those criteria. The defendants respond that, despite the plain text of section 1401, the statute meant to include either type of exchange, or at least that the text is so ambiguous that either reading is permissible.

Greenhouse fails even to mention the government’s stronger, though ultimately unpersuasive, argument that the statute is ambiguous. Instead, she insists that the plaintiffs’ reading of the statute is utterly frivolous. She relies on two central claims. First, that the plaintiffs’ argument requires the Court to break from its universally accepted practice of reading statutory provisions in context. Second, that the plaintiffs “ignore” that the provision they cite is “buried” in “technical sub-clauses” and cannot possibly be as important as they maintain. Neither of her claims are true, let alone compelling.

Greenhouse’s assertions would have been less absurd if she admitted that both sides presented arguments and then stated that she found the government’s position more compelling. However, she chose to present the case in a cartoonishly one-sided manner, where the challengers simply failed to respond to the government’s entirely indisputable arguments.

Ed Whelan recently responded to her first claim. He showed that the plaintiffs interpret the key language in light of its context and that the D.C. Circuit agreed that, context considered, the plaintiffs had the better reading of the statute. Greenhouse could have argued that the plaintiffs’ arguments regarding context was unpersuasive, but her claim that the plaintiffs want the Court to ignore context is false.

Greenhouse’s second point, regarding the location of the debated provision, fares no better. Echoing her first argument, she does not maintain that the government’s arguments are more compelling than those of the plaintiffs. She insists that the plaintiffs ignored this issue altogether, and that simply is not true.

This second argument is hard to take seriously, since it immediately follows several pages contending that proper statutory interpretation requires that the entire statute be examined, not only certain portions of it. Greenhouse is seemingly adamant that the Supreme Court must read and consider the entire statute — other than section 1401, of course, which really is so trivial that no one ought to bother examining it. Perhaps she really meant that proper statutory interpretation requires considering parts of a statute that support her position and skipping the rest.

The plaintiffs do not ignore arguments regarding the location of the limiting provision. In fact, they directly address them in their Supreme Court brief (page 29), Fourth Circuit reply brief (page 7), and district-court brief (page 9). Even the government, in its own Supreme Court brief (page 40), recognizes that that the plaintiffs made this argument.

Plaintiffs note that the provision is the only one in the statute that directly discusses which plans are eligible for the subsidies, making it “the most natural provision in which to specify that only coverage purchased through a state-established Exchange is eligible.”

Far from being an unimportant “technical sub-clause,” this section is the only provision that explains that insurance must be purchased through an exchange in order to be eligible for subsidies. If not for this provision, one could legitimately understand the ACA to allow the government to subsidize insurance purchased directly from an insurer, bypassing exchanges entirely. It is not surprising that these two requirements — that the insurance be purchased on an exchange and that it be a state (not a federal) exchange — were included in the same provision.

The D.C. Circuit, which ruled for the plaintiffs, agreed with their arguments on the placement of the text in question. The court noted that it found the government’s claim in this regard “unpersuasive” and recognized that, as the plaintiffs argue, the provision is the only section of the statute that limits subsidies to insurance plans purchased through exchanges.

How did Greenhouse make such basic errors? Why did she make claims that were so blatantly false instead of simply arguing that the government’s arguments were more persuasive?

Greenhouse explains that the “intricacies of the statute . . . aren’t my point.” Her article served several purposes, including cheering up her “despairing friends” in the “progressive community” and bullying the Supreme Court, but objectively informing her readers about an upcoming Supreme Court case wasn’t among them. Her piece is a bit of partisan cheerleading, and the misinformation contained therein is a feature, not a bug.

Fortunately, though, the antidote to Greenhouse’s misinformation is stated right in her article. If readers want to know the truth, they should put down the New York Times and “read the briefs” instead.

— Howard Slugh is an attorney practicing in Washington, D.C., for a firm that submitted an amicus brief in King v. Burwell.

Howard Slugh — Howard Slugh is an attorney practicing in Washington, D.C. He is a co-founder of the Jewish Coalition for Religious Liberty.

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