Values or Law at the United States Supreme Court?

By Eric Segall

Since 1803 when the Supreme Court first exercised the power to overturn a federal law, there has been a running debate among legal scholars and Court commentators over the blend of personal values and law that drives Supreme Court decisions. That question has never been timelier or more important.

The Supreme Court is going to hand down ten blockbuster decisions between now and the last day of June. In addition to cases on same-sex marriage and Obamacare, the Court has before it three First Amendment cases, a separation of powers battle between the President and Congress over the legal status of Jerusalem, a death penalty case challenging the validity of a standard method of execution, cases involving housing and employment discrimination, and an Arizona case raising a fundamental issue of American politics: whether the people themselves are allowed to create a non-partisan committee to perform the nakedly partisan, and crucial task, of redistricting. The answers to these cases will further define who we are as a people and what our country stands for across broad areas of domestic politics, foreign policy, and criminal and civil rights law.

Although these cases raise different issues, all ten have one thing in common: the Justices can decide them in either direction and in virtually any manner they choose.  Although most judges have some discretion when deciding legal issues, those who sit on the Supreme Court have by far the most because they are not bound by the decisions of any other court, the Justices themselves choose the cases (and normally pick the ones that are hardest in a policy sense), and when interpreting the Constitution and federal statutes they must give meaning to vague text and contestable history.

In these ten cases, the Justices will talk the talk of “the law made me do it,” but that description simply is not true. Each of these cases will be resolved by men and women making difficult political (not necessarily partisan) value-laden choices. Law and legal reasoning are not irrelevant to those choices, but, contrary to what the Justices would have you believe, they play at most a minimal role.

The starkest example of the Court’s enormous discretion is the one case out of the ten where the law and facts are crystal clear (a rarity at the Court). In King v. Burwell, the Competitive Enterprise Institute, a right-wing think tank, is funding the plaintiffs who are trying to bring down Obamacare through a complete distortion of facts and law. Although virtually everyone knows that the Affordable Care Act was designed and written to implement the iconic three-legged stool of health insurance (community rating so people with pre-existing conditions must be covered at affordable rates, a mandate that everyone must purchase health insurance, and federal subsidies to help those who can’t afford the premiums), the plaintiffs are arguing that the third leg of the stool (federal subsidies) are not available on federal health insurance exchanges. I have written at length about the folly of this argument and how as a matter of law and fact the plaintiffs’ argument borders on the frivolous once one reads the entire law, not just one isolated provision. The legal canon that single phrases in a law must be read by judges in conjunction with the entire statute is universally accepted. Nevertheless, at the oral argument, four of the conservative Justices seemed to accept without question the plaintiffs’ counter-textual and counter-factual arguments relying on one single sentence in a 1000 page law. Like in professional wrestling (and Fox News) anything can happen in this case and probably will.

Jeffrey Toobin of CNN and Linda Greenhouse of the New York Times, two of this country’s most prominent Supreme Court commentators (but neither necessarily a die-hard critic) have also noted how frivolous the legal arguments are in this case. Greenhouse even predicted that the prior “law” in King is so clear that a ruling for the plaintiffs could do lasting damage to the Court and titled her column, “The Supreme Court at Stake.”

I agree with them that the law is clear, but I don’t think Greenhouse’s prediction is correct. Although many Americans will shrug their shoulders and lament the decision if the Court rules against the government, while others will feel much pain from the likely loss of their health insurance, my guess is that people’s views about the Court will not change. Why? Because either the day before or the day after the decision, the Court will likely overturn same-sex marriage bans giving the left and right in this country a split decision which will mute charges of party loyalty and partisanship. What it should not mute, however, are charges of value-laden, not legal, decision-making.

For those of us who study the Justices for a living, it is tough to communicate that the problem with the Court is not that it is too political or too partisan. The real issue is that the Justices make decisions in accord with a complex set of personal values that have little to do with the traditional methods of legal interpretation such as reliance on text, prior case law, and history (and this has always been the case). Although the Justices communicate their decisions through the language of the law, most second year law students could explain how the cited legal reasons in the Court’s cases do not logically support the results.

Thus, the question becomes, under what theory do we allow unelected, life-tenured governmental officials to exercise such great power over all of us. In other words, since law does not drive Court decisions, what is the basis of the Court’s legitimacy? Come the last day of June, and after weeks of important Supreme Court decisions affecting the very fabric of our society, that question should be on the minds of all Americans.

[Correction: The original version of this post mistakenly referred to the Competitive Enterprise Institute as the American Enterprise Institute.]