Obfuscating what judges do

Sandy Levinson

There is an illuminating piece by Stephen Stromberg in today's Washington Post on the utter disaster that will ensue if those supporting the challenge in Burwell prevail before the Supreme Court re the "state" as distinguished from "federal" exhanges. He notes not only that literally millions of people would lose their coverage in Republican states, but also that premiums would likely skyrocket and set up the "death spiral" of health insurance.  The Republicans would get what they've been wishing for (and haven't achieved), which is a true trainwreck (for which they have no plausible solution whatsoever).  But my purpose is not to rant about evil Republicans and their unceasing attempts to torpedo Obamacare (which I'd gladly see replaced by a Canadian single-payer system if that were politically feasible). Rather, I'm interested in the language that Stromberg, a member of the Post's editorial board, uses to describe the stance of the Supreme Corut:

The court can’t base its ruling merely on the possible effects. But the Urban analysis gives a sense of the stakes. It’s astonishing that the coalition challenging the government would welcome such an outcome, creating a policy fiasco where they only imagined one to be before....

Though they have plenty of legal reasons to avoid it, a majority of justices might still rule that lawmakers’ language compels a negative result, detonating the bomb instead of defusing it.

So two things are worth noting:  First, the use of the word "merely" in the first sentence.  Perhaps courts can't base (or, at least, publicly admit that their basing their decisions) exclusively on "possible effects," but, going back to Marbury and foreword to the embarrassing decision a couple of years ago finding a lack of standing in Perry v. Hollingsworth, it's literally impossible to believe that the justices do not regularly take consequences into account in deciding what they do.  The mystery, of course, is why they granted cert in the first place in the exchanges case, given that there are no current conflicts among the circuits, but, hey, they're the Supreme Court, and the four anti-Obamaists can grant cert whenever they want to. 

But what about the notion that "a majority of justices might still rule that lawmakers' language compels a negative result."  Even if we grant, for sake of argument, that the attack on the statute is not frivolous--everyone in the world has to agree that it was poorly drafted in some respects, not least because fanatical Republicans refused to engage in the legislative process that might have alleviated some obvious problems--could any reasonable person believe that the statute "compels" any result at all.  That is, I concede that a judge could argue that the language supports the distinction between "state" and "federal" exchanges and that one shouldn't both putting it within the context of the larger 2000-page statute, though I think that view is, at the end of the day, indefensible save for a kind of legal formalism that is blessedly absent from most of what I call the Constitution of Conversation.  So this means that no judge is "compelled" to decide X or non-X; instead, the judge has to engage in what Mark Tushnet has accurately labeled "judgment," which presumably includes what, overall, is best for the overall polity.  Obviously, if one is a libertarian, then what is best is torpedoing the entire legislation.  But if one is not a libertarian, then what is best is upholding the current law, as it is operating, and leaving it to the political process, such as it is, to cure the defects.  One could do that either because a) one believes, on balance, that Obamacare is a genuine improvement in our overall polity or b) because one actually believes in something called "judicial restraint" that believes that the Court, especially by a 5-4 Republican-Democratic vote, should not undo truly important public policies without extremely good reason (let's call it a "compelling interest").  The proponents in this case offer no such interest:  they offer only a remarkably wooden, non-purposive (or, to be generous, a completely made-up purpose, based largely on the comments of Jonathan Gruber) reading of a single patch of text.

But Stromberg's column illustrates how hard it is to escape the view/hope that suggests that justices live in an apolitical realm where consequences don't matter and the language of complex documents "compels" them to do what they think is really bad for the society. 



Posted 4:05 PM by Sandy Levinson [link]