Bench Memos

Worst and Best Quotes From King v. Burwell

First, the worst from the Chief Justice’s opinion:

  1. “[T]he phrase ‘an Exchange established by the State’ is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges—both State and federal.”

Really? Since when can an exchange be simultaneously established “by the State” and “by the federal government?” Maybe this is what Justice Scalia called the majority’s “defense of the indefensible.”

  1. “Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through ‘the traditional legislative process.’ And Congress passed much of the Act using a complicated budgetary procedure known as ‘reconciliation,’ which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”

And the Court should be opining on the quality of the legislative process… when, exactly?

  1. “If petitioners are right, therefore, only one of the Act’s three major reforms would apply in States with a Federal Exchange.”

The petitioners were right because that’s what Congress enacted. And yet…

  1. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

There you have it: The Court had to destroy the statute to save it. 

Now come the good parts, from Justice Scalia’s dissent:

  1. “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’”

Preach it.

  1. Today’s interpretation is not merely unnatural; it is unheard of.”

Except in the government’s briefs.

  1.  “[N]ormal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

You noticed that pattern too?

  1. “We should start calling this law SCOTUScare.”

“SCOTUScare” has a nice ring to it, don’t you think?

  1.  “(Impossible possibility, thy name is an opinion on the Affordable Care Act!)”

Alice (the one from Wonderland) sometimes believed six impossible things before breakfast, so at least there’s precedent for this decision. But doesn’t context change the interpretation of the statute?

  1.  “Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.”

I see. Should we expect to see the Supreme Court use context this way in the future? Probably not . . .

  1. “One begins to get the sense that the Court’s insistence on reading things in context applies to “established by the State,” but to nothing else.”

One of the many words describing the majority’s reasoning is “specious.” But doesn’t the Court have a strong case for ambiguity?

  1.  “On the other side of the ledger, the Court has come up with nothing more than a general provision that turns out to be controlled by a specific one, a handful of clauses that are consistent with either understanding of establishment by the State, and a resemblance between the tax-credit provision and the rest of the Tax Code. If that is all it takes to make something ambiguous, everything is ambiguous.”

Fine. I guess that reasoning is “pure applesauce” and “jiggery-pokery.” But maybe Congress just made a mistake. It was nothing more than a drafting error, right?

  1. “If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it.”

Touché.  What does this decision tell us about the Court’s judicial philosophy?

  1. “The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. . . . This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that ‘[o]ur task is to apply the text, not to improve upon it.’”

The majority seems to think it has more power than just deciding cases based on “the law.”

  1. “Even less defensible, if possible, is the Court’s claim that its interpretive approach is justified because this Act ‘does not reflect the type of care and deliberation that one might expect of such significant legislation.’ It is not our place to judge the quality of the care and deliberation that went into this or any other law. A law enacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate. Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.”

But surely none of these bad decisions will have any implications for the future, right?

  1. [T]his Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (‘penalty’ means tax, ‘further [Medicaid] payments to the State’ means only incremental Medicaid payments to the State, ‘established by the State’ means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”

Oh. That’s a problem.

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 ...

Most Popular

Elections

Biden, Never

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found  here, here, here, here, here and here. These articles, and the one below, reflect the views of the individual authors, not of the ... Read More
Elections

Biden, Never

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found  here, here, here, here, here and here. These articles, and the one below, reflect the views of the individual authors, not of the ... Read More
Elections

Late Campaign Stops Don’t Seem to Do Much

Growing up in New Jersey, we called nights like tonight – where there were expectations for hooliganism -- vandalism, breaking windows, and perhaps even arson, “Mischief Night.” In Detroit, they called it “Devil’s Night.” In 2020, Americans just call it “Friday.” On the menu today: wondering ... Read More
Elections

Late Campaign Stops Don’t Seem to Do Much

Growing up in New Jersey, we called nights like tonight – where there were expectations for hooliganism -- vandalism, breaking windows, and perhaps even arson, “Mischief Night.” In Detroit, they called it “Devil’s Night.” In 2020, Americans just call it “Friday.” On the menu today: wondering ... Read More

Searching for a Sign

I’ve been waiting for almost six months to see a Biden-Harris yard sign in my neighborhood. Finally one -- just one -- appeared about two weeks ago. It is large and proud. The homeowners even equipped it with a spotlight, so that it is visible at night. I’m surprised, because liberal political yard signs ... Read More

Searching for a Sign

I’ve been waiting for almost six months to see a Biden-Harris yard sign in my neighborhood. Finally one -- just one -- appeared about two weeks ago. It is large and proud. The homeowners even equipped it with a spotlight, so that it is visible at night. I’m surprised, because liberal political yard signs ... Read More
White House

Hell, Yes

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found here, here, here, here, and here. These articles, and the one below, reflect the views of the individual authors, not of the National ... Read More
White House

Hell, Yes

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found here, here, here, here, and here. These articles, and the one below, reflect the views of the individual authors, not of the National ... Read More