Monday, January 26, 2015

Does the Same-Sex Marriage Cert Grant Imperil the Affordable Care Act?

by Michael Dorf

In my latest Verdict column, I argue that the SCOTUS cert grant in the Sixth Circuit same-sex marriage (SSM) cases makes it all but a foregone conclusion that the Court will recognize a right to SSM by the end of the current term. I say that the important question now is how the Court goes about finding a right to SSM: Will the Justices apply nominally rational basis scrutiny while finding the "accidental procreation" argument irrational? Will they say that laws denying SSM are rooted in constitutionally impermissible "animus"? Or will they say--as I propose they should--that laws discriminating on the basis of sexual orientation must be subject to heightened scrutiny?

Readers interested in why I would prefer an express holding that sexual orientation is a suspect or semi-suspect classification are invited to check out the column. Here I want to address what may strike all but the most dedicated Supreme Court junkies as a non sequitur: Did the cert grant in the SSM cases increase the odds that the Obama Administration will lose the challenge to the Affordable Care Act subsidies on the federal exchanges in King v. Burwell?

Obviously, there is no doctrinal connection between the issues. So why might one think that the odds of a government defeat in King just went up a bit? The answer lies in the realm of human psychology.

Recall that one leading theory that aimed to explain the vote of CJ Roberts to uphold the ACA's so-called individual mandate under the taxing power in NFIB v. Sebelius went like this: The Chief Justice cares a great deal about the Court's reputation as an institution; he believes that public perceptions of the Court as a partisan body undermine that reputation; he foresaw that a 5-Republican-to-4-Democrat split on the Court to invalidate the signature legislative achievement of a first-term Democratic President during an election year would be widely perceived as partisan; and so he was inclined to want to find some way to uphold the ACA.

There is a crass and a less-crass version of the foregoing theory. The crass version had the Chief Justice making the calculations just described consciously. In the less crass version, the calculations were subconscious.

As I've said before, I don't know of any evidence that the institutional integrity considerations influenced the Chief Justice at all in NFIB v. Sebelius. I certainly disagree with the conservative critics who argue that his reasoning with respect to the tax power was so weak that he must have been deciding based on other factors; in my view, that was a perfectly plausible purely legal basis for the ruling.

Nonetheless, I acknowledge the possibility that the Chief Justice (and one or more other Justices) might occasionally give conscious or subsconscious consideration to how the Court's rulings will be perceived. If so, then having a same-sex marriage case on the docket--in which the Court will almost certainly produce a "liberal" ruling--gives the Chief (and other conservative Justices) the latitude to rule against the Obama Administration in King without substantially contributing to the perception of the Court as a partisan body. The average relatively-low-information observer will see a liberal and a conservative decision on big issues and think that the Court is not deciding based on politics but based on law.

So far I have merely articulated a worry that my informal methods lead me to think is fairly widespread among SCOTUS cognoscenti. I have not offered any concrete evidence for it, and I do not know of any efforts to test for such evidence. I'm confident that I lack the statistical skills to tease out from the long-term pattern of SCOTUS decisions whether a high-profile liberal decision in any Term increases the odds that an unrelated case will be decided in a conservative way (or vice-versa). But let me suggest that this is a sufficiently interesting hypothesis that the kinds of scholars who do have the right skill set might want to test it.

21 comments:

Joe said...

This is the assumption of various people. I doubt it is the tipping point. Pragmatic concerns might concern them, such as not looking like idiots. The argument is that bad.

BTW, your Verdict column has no audio. Is that a one time thing or are you stopping that?

Shag from Brookline said...

Mike's:

"Nonetheless, I acknowledge the possibility that the Chief Justice (and one or more other Justices) might occasionally give conscious or subsconscious consideration to how the Court's rulings will be perceived."

brings to mind Finley Peter Dunne's Mr. Dooley on the Court following the "illiction" returns. Alas, Mr. Dooley was no longer with us (fictionally or otherwise) when the Court came down (5-4) in Bush v. Gore (2000) in effect "illicting" George W. Bush. So perhaps some on the Court look ahead to the next "illiction," especially with the concern that it might change the Court's majority.

Unknown said...

If His Honor did as suggested, I would be very concerned about the integrity of the court because it sends the message the court is focusing on matters other than its purpose: contemplatively interpreting the law.

pvine said...

I made the same (speculative) point on the VC after the Court granted cert. in the SSM case.

But, after reading the goverment's brief in King, I think the petitioner's will have an uphill battle getting five votes, nothwithstanding the liberal/conservative opinion (undocumented) theory.

The government makes a pretty persuasive argument that accepting the petitioner's position would, in fact, result in an "absurd" interpretation of other parts of the ACA. This absurdity might be enough to cause five Justices (including the four NFIB dissenters who wanted the ACA declared unconstitutional in toto) to deviate from the plain text of section 36B.

I would note, however, that I don't expect five Justices to afford Chevron deference to the IRS rule interpreting section 36B.

egarber said...

On the latest ACA case, I'm very intrigued by the resulting political ramifications.

If the SCOTUS invalidates tax subsidies in states without a state exchange, that will eliminate benefits -- and health insurance -- for millions. The result will be that red state taxpayers end up subsidizing benefits for those in other states (where exchanges have been established). After all, even though challengers might be motivated by imagined cost savings, those red state citizens will still be paying the same federal taxes either way.

If this leads to a revolt -- we're already seeing versions of it related to the rejection of Medicaid funds -- red state legislatures will seemingly have to do something. One easy move would be to start up a state exchange, which would actually strengthen the ACA. Of course, they might pursue alternatives as another path. However, without new help from Congress in some form, the latter would be a go-it-alone approach, which might require local tax increases to make it work. Given that federal taxes are a constant here (explained previously), it's hard to see how local options wouldn't be more expensive for impacted taxpayers**.

So this whole thing seems to be a lesson about the practical consequences of ideological purity. There are times when it can backfire.

**Of course, as Colbert says, the alternative might be a cheap new website: walkitoff.org :)

t jones said...

In your Verdict column you state "And because no one thought the Justices would deliberately invite chaos, the operative question became not whether the Court would recognize a right to same-sex marriage, but when it would do so."
By this logic, wouldn't the chaos caused by undoing the ACA in the significant number of states which do not have their own insurance exchanges argue against a "conservative" ruling?

Joe said...

ETA: I see there is audio for your post now. Perhaps, it was a flub.

egarber said...
This comment has been removed by the author.
egarber said...

t jones, good point.

However, I wonder if there is a difference.

Mike makes a point of saying the court first turned down SSM marriage cases, so the justices directly caused issuance of marriage licenses.

Has anything similar happened with ACA subsidies -- or is this the first claim to reach the SCOTUS?

egarber said...

Looking at the two questions, is a Yes / No outcome possible? That would be pretty weird I think.

Joe said...

By this logic, wouldn't the chaos caused by undoing the ACA in the significant number of states which do not have their own insurance exchanges argue against a "conservative" ruling?

This has actually been flagged by some on the Right / opponents of the law, and some have pushed for the Republicans in Congress to show they have an alternative.

http://www.usatoday.com/story/opinion/2014/12/04/obamacare-king-burwell-supreme-court-repeal-alternative-republicans-column/19922353/

Anyway, some have suggested this will concern the conservatives on the USSC, particularly Chief Justice Roberts.

pvine said...

@ egarber,

The chaotic "political ramifications" that you so astuetly point out might transpire if the Court rules that section 36B means exactly what is says, is not unusual. Rather, it is the norm in America. And it is called Democracy. Not pretty. But that is how the Founders intended the process to work.

Joe said...
This comment has been removed by the author.
Rich said...

Perhaps a better analogy is to the high-profile Fair Housing Act case currently before the Court -- Texas HCA v. Inclusive Communities Project, in which the Court heard oral arguments on January 21. Unlike the SSM case, both the FHA case and the ACA case turn on an issue of statutory interpretation. The oral arguments in the FHA case suggest that Justice Scalia, applying his textualist approach, may provide the decisive fifth vote for a disparate-impact interpretation of the FHA, i.e., for the "liberal" result. Applying the theory put forward in this post, a liberal decision in the FHA case would provide "cover" to the conservatives to use a textualist rationale to rule against the Obama Administration's interpretation of the ACA.

ggggg said...

Hello Good Day Yo You All In One Peace, I Am Batista Elissa, From Iceland, Here Is My Testimony About A Wonderful Spell Caster Who Helped Me Restore My Broken Marriage, Dr Tanasia Jobs Via (tanasiajobs210@gmail.com) My Husband Left And Broke Up With Me For No Reason To Tell, And I Found Out That This Wonderful Spell Doctor Helps Heal A Friend Of Mine From HIV, So I Decided To Contact Her And Tell Her My Problems As Well, She Told Me All Is Done,And It Came To Pass Just As The Woman Has Said, If You Are In Any Family Problem Or Spiritual Problems She Can Also Be A Blessing To You As Well.. Thanks

aryh884 aryh884 said...

台中徵信社價格,合法徵信社,感情挽回,外遇,財務公司
徵信協會 ,合法徵信社,免費法律諮詢,外遇徵兆,
台中徵信社,免費諮詢律師,徵信社工作,徵信,外遇問題,抓姦,合格徵信社,徵信社工作
心理醫生,捉姦,新竹徵信社,徵信社收費,徵信公司
基隆徵信社,女人徵信社,尋人徵信社,女人徵信社,合法徵信社,外遇徵兆,法律諮詢免費
外遇搜證,徵信社推薦,尋人啟事,徵信社工作,台中徵信社,女人徵信社
蒐證,徵信,桃園徵信社,婚外情,法律諮詢
徵信社工作,財產徵信,第三者,尋人查址
彰化徵信社,台中徵信,免費法律諮詢,政府立案徵信社,出軌
合法徵信社,法律諮詢,小三,律師,婚姻挽回,徵信社價格
台中徵信公司,通姦,離婚,婚姻,感情挽回
外遇解析,女人徵信社,外遇抓姦,法律諮詢服務,
免費法律諮詢,外遇蒐證
外遇抓姦

Guo Guo said...

guowenhao20150326
coach outlet store online
michael kors outlet
jordan 4
prada shoes
louis vuitton handbags
timberland shoes
hollister pas cher
tod's sale
nhl jerseys wholesale
kate spade handbags
beats by dre
prada outlet
kate spade uk
prada handbags
ray ban
louis vuitton outlet
abercrombie
new balance shoes
burberry outlet
coach outlet
tods outlet
adidas wings
coach outlet online
toms shoes
foamposite gold
lacoste outlet
adidas shoes
christian louboutin
kate spade outlet
tiffany and co jewelry
michael kors canada
toms shoes outlet online
lululemon
giuseppe zanotti outlet
kobe 9 elite
michael kors handbags
converse outlet
michael kors outlet
foamposite shoes
michael kors outlet

Guo Guo said...

guowenhao20150430calvin klein outlet
swarovski crystal
links of london
michael kors outlet
burberry outlet online
lacoste outlet
ray ban sunglasses
nba jerseys
ray ban wayfarer
michael kors handbags
mac makeup
kobe bryants shoes
michael kors outlet
tods outlet
toms shoes
ray ban uk
ray ban sunglasses
coach factory outlet
celine outlet
adidas wings
marc jacobs outlet
abercrombie and fitch
timberland boots
true religion outlet
michael kors factory outlet
coach outlet store online
instyler
louboutin shoes
beats solo
nike roshe run
ray ban sunglasses
air force one shoes
ray ban sale
herve leger dresses
michael kors outlet
cheap oakley sunglasses
salvatore ferragamo
michael kors handbags
cheap toms
mcm bags

Shijun Lin said...

shijun 5.20
celine outlet online
hollister clothing store
christian louboutin shoes
ray ban outlet
red bottom shoes
abercrombie
oakley sunglasses
coach outlet
timberland uk
ray ban outlet
coach outlet online
burberry handbags
michael kors
louis vuitton purses
hollister clothing store
ralph lauren home
cheap oakleys
abercrombie kids
burberry sale
oakley outlet
cheap oakleys
true religion outlet
louis vuitton outlet
louis vuitton handbags
cheap nfl jerseys
oakley sunglasses discount
juicy couture handbags
michael kors handbags
louis vuitton
celine bags
coach outlet
jordan 13s
louis vuitton outlet
air jordan 13
official kate spade outlet online
fitflops
coco chanel
ralph lauren uk
coach outlet online
coach factorty outlet

chenlina said...

chenlina20150604
adidas running shoes
fitflops clearance
michael kors outlet online
gucci bags
michael kors
coach outlet store online
hollister clothing store
ralph lauren outlet
timberland outlet
kate spade outlet
jordan 11 concord
beats studio
abercrombie and fitch
abercrombie
oakley sunglasses
true religion sale
ray ban uk
concords 11
oakley sunglasses
christian louboutin outlet
ray ban sunglasses
louis vuitton handbags
kids lebron shoes
louis vuitton handbags
oakley sunglasses
mulberry uk
louboutin
jordan 4 toro
jordan 13
cheap jerseys
coach outlet store online
louis vuitton outlet
burberry handbags
michael kors
burberry sale
kate spade handbags
lululemon sale
toms shoes
discount christian louboutin
michael kors outlet

Guo Guo said...

guowenhao20150605
mcm bags
new york jets jerseys
tory burch outlet online
timberland shoes
roshe run men
lacoste shirts
oakley sunglasses
boston celtics jersey
chanel handbags
swarovski crystal
hermes birkin
iphone 6 plus cases
louis vuitton outlet
prada outlet
michael kors handbags
burberry outlet online
abercrombie and fitch
tods shoes
abercrombie
converse all star
lacoste outlet
denver broncos jerseys
air jordan shoes
adidas outlet
adidas shoes
nike running shoes
marc jacobs outlet
seattle seahawks jerseys
michael kors handbags
coach outlet
kate spade handbags
ray ban sunglasses
hermes belt
insanity
converse shoes
mcm handbags
lebron james shoes
gucci outlet
calvin klein underwear
louis vuitton outlet