Bench Memos

Linda Greenhouse’s Confused Context

In her latest online column, Linda Greenhouse discusses King v. Burwell, the pending Supreme Court case (to be argued on March 4) that presents the question whether the provision of Obamacare that authorizes federal subsidies for health-insurance coverage that is purchased through an “Exchange established by the State under section 1311” permits the IRS to extend subsidies to coverage purchased through exchanges established by the federal government under a different section. A couple of quick observations on Greenhouse’s one-sided discussion:

1. According to Greenhouse, the Supreme Court “has permitted itself to be recruited into the front lines of a partisan war” and the “court itself is in peril as a result.” Indeed, the headline and subheadline of her piece (for which she might not be responsible) declare “The Supreme Court at Stake” and “Overturning Obamacare Would Change the Nature of the Supreme Court.” I would think that this rhetoric far better describes what is at issue in the cases challenging state marriage laws, but evidently Greenhouse is happy to have the Court on the front lines of that partisan war.

2. Greenhouse stunningly asserts that the nine justices “actually all agree on how to interpret statutory text.” I guess that’s why, say, all statutory cases—including last year’s ruling in the Hobby Lobby case (which involved interpretation of the federal Religious Freedom Restoration Act)—are unanimous…. Oops.

It turns out that all that Greenhouse means by that sweeping statement is the trivial proposition that “Every justice subscribes to the notion that statutory language has to be understood in context.” She buries in a parenthetical the fundamental divide over “what weight to give a law’s ostensible purpose.” Worse, she seems not to recognize that the line between properly considering context and improperly smuggling considerations of supposed purpose into the context inquiry is very much in dispute.

It should be no surprise that the petitioners challenging the IRS’s reading argue that statutory “context confirm[s] the plain text of the subsidy provision” (see Brief at 27-30) or that the D.C. Circuit panel majority that rejected the IRS’s reading (in the separate case of Halbig v. Burwell) also relied on context. That of course doesn’t by itself mean the petitioners or the D.C. Circuit panel majority are right. But it does illustrate how silly it is for Greenhouse to think that the proposition that “statutory language has to be understood in context” is enough to resolve the case.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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