Saturday, May 16, 2015

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.]


Unknown said...

"That question has never been timelier or more important." -- What about Dred Scott?

Unknown said...

Also, in King, if "the law and facts are crystal clear" why have the courts not been unanimous in ruling for the government in this case?

Shag from Brookline said...

Regarding the "Correction," it should be noted that the American Enterprise Institute is very, lowercase, competitive politically.

It should be kept in mind that neither Article III nor any other portion of the Constitutions specifically provides for judicial supremacy horizontally over the elected Executive and Congress.

Eric Segall said...

Judges with life tenure who have discretion will in front page cases sometimes make political (values all the way down) decisions. If you read Halbig's discussion of "such," you will see it is virtually incoherent. The only other judge who ruled for the plaintiffs is, quite simply, a political hack who in fact has been officially reprimanded.

andy grewal said...

King v. Burwell strikes me as an exquisitely poor example to make the point. It's a close question, and there are numerous instances where Section 36B and 4980H say one thing and the regulations say something completely different. The challengers may ultimately be incorrect (I haven't been convinced one way or another on the issue), but it's surely far from frivolous.

However, I can understand why Eric believes that politics play such a big role, if even for an objectively ambiguous issue, he is certain that those who view things differently must be motivated solely by political concerns. I don't have such a jaundiced view of the Court.

Eric Segall said...

The congress spelled out exactly what would happen if a state failed to create a 1311 exchange. The Secretary of HHS "shall" create "such" exchange. This is not unclear and everyone in the world agrees about what a 1311 exchange is. The mistake many people are making is assuming that if enough smart lawyers keep saying something, there must be some truth to it. That is simply not true in our new legal blog works. Adler and Cannon have pulled this off with the assistance of a couple political judges but the case at bottom has no merit in fact, law, or text.

andy grewal said...

In the same vein, a smart person simply repeating his position and announcing that the contrary position has no merit in fact, law, or text, does not establish the accuracy of his position.

Section 36B, standing alone, pushes for one reading (state-only credits) but contextual factors may very well overcome that isolated reading. Yet some canons, like the legislative grace canon, might then push once against those contextual factors. This reflects a classic example of a thorny doctrinal issue.

I understand that for some constitutional issues, yes, there is so little to go on that outcome will ultimately turn on the judge's interpretive approach. But Section 36B presents a classic question of statutory construction and is a bad illustration of the proposition being advanced in the blog post.

Note that even before the issue became politicized, you could find statements in tax treatises or articles stating that subsidies were limited to state Exchanges.

I can understand how a reasonable person could believe that the challengers were correct. I can also understand how a reasonable person could believe that the government is correct. But someone, on either side, who thinks that his opponents' views are purely frivolous is the one playing politics.

At the very least, I hope that any students reading this blog should understand that when, for example, even the 4th Circuit acknowledges the ambiguity in the question in finding for the government, there is meat on the issue. Too many students are already taught or believe that all law is politics, and it's unfortunate that any serious legal scholar would present this as such a completely one-sided question which can yield only one politics-free answer.

Eric Segall said...

You didn't respond to my substantive point at all. Listen Shelby County, Hein, Seminole Tribe, and of course Bush v. Gore are all opinions without a basis in law or fact. Judges are complicated actors and make decisions for complicated reasons. But until you address the statutory command "if the states don't establish an exchange, the Feds shall create such exchange," you are just making Ad Hominem arguments.

Eric Segall said...

By the way, Section 36(b) does not say subsidies are only available on state exchanges or unavailable on federal exchanges. I understand Adler & Cannon keep saying that but it is simply not true. As for judges, law students learn in the first year not to believe something is true just because a judge says it.Robert's casual dismissal of 21 hearings and 15,000 pages of testimony in Shelby County is a good example.

Joe said...

I like the term "same sex marriage." "Gay" marriage has some truth to it, but like "love," being gay is not required.

"Obamacare" has some truth to it too, but like it less. We have "Medicare," not "LBJ-care." And, though PPACA expanded Medicaid some, the term makes it sound more broad than it really is. And, ultimately, the Senate was the key party here. Getting sixty votes there was the true test. The term finally was originally used as an epithet. The fact some people, in part as a spin exercise, who like the law took the name doesn't impress me much.

Law and legal reasoning will play more than a "minimal role" here. The overall frame here to begin with fits into years of law of equal protection, liberty, the right to marry, animus etc.

We need not deny that value choices and who is justice (itself partially a matter of choosing different legal visions -- there's that word again) is important. This includes in a case like King, which is highlighted by some because it is seen as particularly stupid as a legal matter.

But, Prof. Segall doesn't think the USSC is really a "court" anyhow. If not, oh well. It might just boil down to the wrong sort of values there. I think that gives Adler et. al. too much credit.

andy grewal said...

Apparently "ad hominem" attacks include pointing out that the 4th Circuit acknowledged the ambiguity in the statute and that the leading tax treatise (Bittker & Lokken) reads the statute in a way consistent with the challengers, as do various other authorities.

I don't think "ad hominem" means what you think it means. Nor does Section 36B.

I will apologize, however -- until Joe's comment I was not aware that you did not consider the Court a "court" at all. Wouldn't have bothered to engage otherwise. Enjoy your Sunday.

Eric Segall said...

Well, maybe before you casually and condescendingly dismiss a thesis I've spent two decades developing, you should 1) at least look at the book and 2) explain what you would expect from an institution staffed by unelected, life-tenured officials who take the hardest problems and are supposed to answer them with reference to hopelessly vague text and contested history knowing their decisions are usually functionally unreviewable. I think the result is at best Judge Posner's unique "political court," but more likely not a court at all.

Asher said...

I think the government should win for reasons of context, purpose, or Chevron deference. But the problem with your argument is that "such" doesn't really mean quite what you think it means, or at least it doesn't always. Let's take Justice Kagan's hypo at oral argument. She said that if she told Jane to write a memo, John to write Jane's memo if Jane were ill, and Peter to edit Jane's memo, she would have clearly instructed Peter to edit the memo in the case John wrote it. But really? Suppose she says, to make this as close to the statute as possible, "Jane, you shall write the memo on Burwell. John, if Jane fails to write the Burwell memo, you shall write such memo. Peter, you shall edit the memo written by Jane."

Now, we can all agree that the antecedent of "such" is "the memo on Burwell" and that John is unambiguously instructed to write the Burwell memo in the event that Jane can't. But how "such" transforms a memo in fact written by John into "the memo written by Jane," I'm not certain. The instruction to John to write "such memo" unambiguously commands John to write Jane's memo on Burwell insofar as that's possible, but it's impossible for him to become Jane or to write just the same memo that she would have written. All "such" does there, I think, is signify that he's to write a memo about Burwell; everything else can and will be different. And so it remains possible, I think, to make specific instructions for "the memo written by Jane" and not also be understood to refer to John's substitute memo. (Whereas as you read "such," she could say "Jane's Burwell memo and only Jane's memo" and it would be ineffective; such makes John's Burwell memo Jane's Burwell memo and that's that.) Of course, it might be very apparent, in context, that Justice Kagan wants Peter to edit the memo whether it's written by Jane or John, and that "memo written by Jane" means "the memo Jane was supposed to write, whether or not she herself does." But it could also be evident from context that she literally meant the memo written by Jane only. (Suppose that Peter is particularly good at editing Jane's stuff, is always instructed to edit her work, etc.)

In short, the problem with your view is that you seem to think "such" creates an equivalence that collapses distinctions the text itself creates (in the ACA, a distinction as to the identity of the establishing entity), whereas I think it normally only signifies an equivalence insofar as equivalence is practically possible and isn't undermined by the text. It's as if you claimed that if Justice Kagan told Jane to attach a red cover to her memo and told John to write "such memo" if Jane fell ill and print it with a blue cover, a subsequent command to bring her "the memo with the red cover" becomes an unambiguous reference to John's blue-covered memo. Maybe it means that. It would be possible to talk in such a way that everyone understood "the red memo" referred to a memo that was only initially supposed to be red. (At the Supreme Court the Justices refer to red briefs and blue briefs because the rules make petitioners attach blue covers and respondents red, and if a petitioner failed to attach a blue cover they'd probably still call his brief the blue brief.) But it's obviously possible not to mean the blue memo when you refer to the red memo, even if the two are linked by a "such," and at the very least this odd manner of speaking creates ambiguity.

Eric Segall said...

Thank you for engaging. The "such" argument incorporates unassailable facts: 1) the "interrelated" (Adler's term) three legged stool was the major basis of the ACA; 2) nowhere does the law expressly say subsidies are only available on state exchanges or unavailable on fed'l exchanges; 3) everyone agrees state exchanges have federal subsidies; 4) no administration official ever told the states they could lose subsidies if they didn't create an exchange; 5) there is no hint of a threat in the law; and 6) the law exactly says what happens if the states don't create an exchange (the feds will create one). An exchange without subssdies is simply not an ACA exchange. "Such" might certainly be ambiguous in some contexts....but not this one.

Unknown said...

To me, the Court's decision in Yates is the most important predictor. Justices Ginsburg, Breyer, Sotomayor, and Roberts argued that grouper are not tangible objects. So they're reading "tangible objects" as having a radically contextually determined meaning, which is pretty extreme, if you ask me. Context here included titles of sections, other provisions of the US Code, perhaps even the intent of the legislators. On this ground alone, I think CJ Roberts will give context a great deal of weight when reading "established by the State". It should weigh on him that some provisions of the ACA are mutually inconsistent if the plaintiffs' reading is adopted. This is particularly important to Justice Kagan, who read "tangible objects" literally in Yates, but who, I think, tipped her hand at oral argument in King v. Burwell. She was particularly bothered by the inconsistency issue. So you have 5 votes right there. Justice Kennedy has an interesting federalism argument up his sleeve, and he will, I think, write a concurring opinion agreeing with the majority's conclusion, but not with the majority's reasoning. Justices Scalia and Thomas will read "established by the State", in context, as having its literal meaning, just as they read "tangible object" in Yates as having its literal meaning. That leaves Justice Alito, who thought Yates was a close question, though he eventually voted with Justices Ginsburg et al. He will flip back and join Justices Scalia and Thomas in dissent.

Will the Justices' political or personal views play a role here? I think so. The canons that Justice Scalia loves are very malleable. This is ironic, given that Justice Scalia's distaste for "living constitution" views is motivated by the desire to avoid giving justices too much in the way of discretion. Arguably, the canons here point quite strongly in the direction of the government's interpretation of the ACA. But, as has often happened in the past, Justice Scalia's own public policy preferences will dictate how he applies the canons. I suspect that Justice Thomas's position will actually be a form of principled literalism. I suspect that many of the more "liberal" Justices will apply a kind of principled intentionalism ("surely Congress didn't intend that the law would essentially lead to its own demise when implemented").

Joe said...

Prof. Segall responded to someone else, but I disagreed with his thesis when he brought it up in the past. That is why I didn't really belabor the point.

For those interested, here's one discussion if you don't have access to his book:

See also here:

Don Smith said...

It seems that Prof. Segall has a rather cynical view of the Supreme Court. His analysis of the legal issues in King v. Burwell is spot on, and he rightly considers it both obvious and unassailable by intellectually honest operators, but believes that the institution committed to deciding the case under our supreme law is more likely than not going to get it wrong, because they have gotten other cases wrong in the past.

If they manage to get this one wrong, it won't be the end of the world, since a statutory interpretation problem can be fixed quickly by Congress when the public screams loudly enough. However, I don't think they'll get it wrong. I'm hopeful that at least six of the Justices will actually follow established canons of statutory interpretation despite their posturing at oral argument.

I'm also hopeful that at least six will give effect to the equal protection clause in the marriage cases. There may not be a majority in favor of any single rationale in either case, but the result will be correct in BOTH cases.

Unknown said...
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Unknown said...
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Unknown said...

After the ACA passed, why couldn't Democrats tweak the "Established by the state" language to clarify the subsidies, like they did after the bill first passed? Reconciliation, etc?

Joe said...

The language didn't need tweaking and by the time it allegedly did, the Republicans had the votes to block it. And, I'm not even sure if the reconciliation process would provide a way to get around the filibuster in this case.

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