Bench Memos

7 Best Moments from the Oral Argument in King v. Burwell

Wednesday’s oral argument in King v. Burwell was high drama. Two accomplished, experienced advocates matched wits with the justices on the tax subsidy provision of the Affordable Care Act that limits subsidies to exchanges “established by the State.” Here are the best moments from the argument (audio and transcript here).​

1. Justice Ginburg’s attempts to dismiss the case on standing go down in flames

Before Mike Carvin could say more than a single sentence on behalf of the challengers, Justice Ruth Bader Ginsburg leapt to challenge the standing of the plaintiffs in the case. Although the government had not raised the issue with the Court, the Left had been smearing the plaintiffs in the media, apparently enough to put the issue on Justice Ginsburg’s radar:

JUSTICE GINSBURG: Mr. Carvin, will you please back up, because before we get to a question of statutory construction, as you know, each plaintiff, or at least one plaintiff, has to have a concrete stake in these questions. They can’t put them as ideological questions. . . .

After a few minutes of detailed discussion on the standing question, Justice Ginsburg sounded her retreat:

JUSTICE GINSBURG: Okay. I don’t want to detain you on this any more but I will ask the government what their position is on standing.

The government’s position, not surprisingly, was that standing was not an issue worth disputing, since they didn’t raise it before the Supreme Court. Verrilli also disclaimed any responsibility for the discussion:

GENERAL VERRILLI: Justice Alito, I did not raise standing affirmatively, the Court raised it. And I’m just doing my best to let the Court know what our position is on standing.

Even Justice Sotomayor piled on, asking “[w]hy wouldn’t we accept a representation by [Carvin]” about whether the facts underlying standing had changed. So much for the Left’s attempts to pre-litigate the case in the media.

2. Justice Kagan concedes that Justice Alito devastated her hypothetical

Early in the challengers’ case, Justice Kagan tried to trap advocate Michael Carvin with a cleverly-designed (though not really on point, as we’ll see) hypothetical trying to make the government’s argument that HHS establishes an identical exchange to the one “established by the state” because of the statute’s use of the word “such”:

JUSTICE KAGAN: Can — can I offer you a sort of simple daily life kind of example which I think is linguistically equivalent to what the sections here say that Justice Breyer was talking about?

So I have three clerks, Mr. Carvin. Their names are Will and Elizabeth and Amanda. Okay? So my first clerk, I say, Will, I’d like you to write me a memo. And I say, Elizabeth, I want you to edit Will’s memo once he’s done.    And then I say, Amanda, listen, if Will is too busy to write the memo, I want you to write such memo.

Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo?

 (Laughter.) . . .

JUSTICE KAGAN:              Because in my chambers, if Elizabeth did not edit the memo, Elizabeth would not be performing her function. In other words, there’s a — a substitute, and I’ve set up a substitute. And then I’ve given I’ve given instructions:  Elizabeth, you write — you edit Will’s memo, but of course if Amanda writes the memo, the instructions carry over. Elizabeth knows what she’s supposed to do. She’s supposed to edit Amanda’s memo, too.

After Carvin answered, Justice Alito jumped in with his own hypothetical showing why Carvin’s answer was correct:

JUSTICE ALITO: Well, Mr. Carvin, if I had those clerks, I had the same clerks –


JUSTICE ALITO: — and Amanda wrote the memo, and I received it and I said, This is a great memo, who wrote it? Would the answer be it was written by Will, because Amanda stepped into Will’s shoes?

MR. CARVIN: That was my first answer.


JUSTICE KAGAN: He’s good, Justice Alito.

Even Justice Kagan had to admit that Justice Alito had bested her.

3. Justice Kennedy snickers at the government

Early in the plaintiffs’ discussion, Justice Kennedy asked whether the entire Obamacare scheme to enlist states in so-called “cooperative federalism” was unconstitutional. Carvin pointed out that the government had never raised the issue, and Kennedy’s response was entertaining:

MR. CARVIN: Two points, Justice Kennedy. One is the government’s never made that argument. Number two, I’d like to think –

JUSTICE KENNEDY: Sometimes we think of things the government doesn’t.


Of course, the government probably did think of that argument, but realized that if it tried to advance it, the SG would be jeopardizing dozens of other federal programs that are just as coercive, if not moreso, than the Affordable Care Act. No way the Solicitor General wants to touch that argument, and Kennedy knows it.

4. Solicitor General Verrilli gets smacked down for nakedly partisan comment

Jokes about Congress are appropriate most of the time, but not in the Supreme Court. Not only are they ad hominem (that’s why they’re usually funny!), Congress’s status as a coordinate branch is actually a significant factor in legal analysis. As a result, when Verrilli tried to deflect one of Justice Scalia’s questions by cracking a joke about Congress, it just sounded partisan. Justice Scalia was not amused:

JUSTICE SCALIA: What about — what about Congress? You really think Congress is just going to sit there while — while all of these disastrous consequences ensue.

I mean, how often have we come out with a decision such as the — you know, the bankruptcy court decision? Congress adjusts, enacts a statute that — that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I — I –


GENERAL VERRILLI: You know, I mean, of course, theoretically — of course, theoretically they could.

JUSTICE SCALIA: I — I don’t care what Congress you’re talking about. If the consequences are as disastrous as you say, so many million people without — without insurance and whatnot, yes, I think this Congress would act.

Sounds like someone forgot he was representing a coordinate branch of the government and not just the Obama Administration.

5. Chief Justice reminds other members of the Court that the challengers’ lawyer Michael Carvin is an advocate

During a colloquy between Carvin and Justice Sotomayor, discussion turned to the first major Obamacare case, NFIB v. Sebelius. Justice Sotomayor tried to show that Carvin was taking a different legal position from one he took in NFIB:

JUSTICE SOTOMAYOR: Wait a minute. That was the whole purpose that drove this bill because States had experimented with this, and those that didn’t have subsidies or other other provisions of the Act didn’t survive.

MR. CARVIN: They didn’t have –

JUSTICE SOTOMAYOR: You said it yourself in the prior case.

MR. CARVIN: No. The prior case was about the individual mandate. The government came in and said the individual mandate is necessary to affect death spirals.

After some more discussion, Justice Ginsburg tried the same trick:

JUSTICE GINSBURG: What Justice Kagan just read to you, you had the idea that the subsidies were essential


JUSTICE GINSBURG: to have the thing work. That’s what you told us last time.

MR. CARVIN: What I told you was it wouldn’t work as expected, and that’s because they thought this deal would work just like the Medicaid deal where all 50 States would say yes, so you would have both of congressional purposes.

With all this talk of prior litigating positions, the Chief Justice had to step in and remind the other justices that as an advocate for different parties with a different legal claim from the other case, Carvin is not bound to the same arguments:

CHIEF JUSTICE ROBERTS: Mr. Carvin, we’ve heard talk about this other case. Did you win that other case?


CHIEF JUSTICE ROBERTS: So maybe it makes sense that you have a different story today?

MR. CARVIN: I’m really glad Your Honor said that.

It sure sounds like some justices were confused about whether normal rules apply to Obamacare litigation.

6. Justice Kagan plays “Chief Justice for a minute”

Due to intense questioning by the justices, Chief Justice Roberts extended the argument time for both parties by ten minutes. During that time, Justice Breyer (who seemed somewhat annoyed that the answer to his previous question had been interrupted) tried to make sure his question had been fully answered:

JUSTICE BREYER: Now, that’s their basic point. I’ve tried to summarize it. Do it as you wish you. I just want you to have 5 or 10 minutes to answer it.

As requested, Carvin then gave a long, substantive answer to Justice Breyer’s question.

But the absence of interruptions seemed to make Justice Kagan edgy. When Carvin reached a stopping point, Justice Kagan and Carvin momentarily spoke over each other, prompting Justice Kagan to say:

JUSTICE KAGAN: Wow. You’ve been talking a long time.

MR. CARVIN: Yes. Yes. Sorry.

JUSTICE KAGAN: You have two more sentences.

Usually the Chief Justice, not the most junior justice, makes decisions about the timing and order of questioning.

7. The Obama Administration refers to Justice Scalia’s book “Reading Law” as a learned treatise

Part of the Solicitor General’s argument involved a discussion of some tax case law requiring courts to read tax credit provisions narrowly. In his attempts to address these questions, Solicitor General Verrilli said the following:

GENERAL VERRILLI: Your Honor raised this point about the need for clarity in in a tax deduction and IRS in the statutory reading of tax deductions, there is a learned treatise that describes that as a “false notion.”

As it turns out, that “learned treatise” was written by none other than Justice Scalia, whose book “Reading Law” dismisses that principle as a “false notion.” (Hat tip: Josh Blackman.)


Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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