an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One of the strongest arguments for the government's position in King v. Burwell has been based on consequences: if the Supreme Court denied insurance subsidies to customers on federal exchanges, the consequences will be disastrous both for insureds and for the states.
But the problem with arguments for consequences is that they assume that the judges share your view of reality. If judges deny that these consequences will actually happen, the argument from consequences falls flat. Consider in this context the continuing belief by many conservative politicians that climate change is not due to human activity. Therefore there is no need to pass stricter environmental regulations because human activity is not the cause of any change that might be occurring.
Put another way, if you and the judges don't see reality the same way, then you can't assume that your arguments about disastrous consequences will do very much to change their minds.
This point is especially important in our current world of polarized media, in which liberal and conservative elites increasingly look to their own trusted sources of information. Justice Scalia, for example, pointed out in a recent interview that he doesn't read the Washington Post anymore because he thinks it is too liberal, and mostly sticks to conservative news sources. If these sources are telling him that a particular issue is not a problem, then he is unlikely to believe that it is a problem, no matter how much people talk about it in newspapers or on the Internet. Why should he trust their account of reality when he doesn't trust their sources of information?
Therefore it was crucial in the oral argument in King v. Burwell to discover whether any of the Justices actually doubted that denying subsidies in federal exchanges would have disastrous consequences. As far as we can tell, all of the Justices accepted this proposition. (Obviously, we don't know what Justice Thomas thinks, because he doesn't talk at oral arguments.) Justices Scalia, Alito, and especially Justice Kennedy, however, spoke as if they accepted that dire consequences would flow from accepting the challengers' position. Although the Chief Justice said little, it would be very surprising if his views about reality were different.
Scalia and Alito, however, also appeared to believe that Congress would quickly come up with a fix that would avoid the problem, and therefore no serious harm would come from upholding the petitioners' challenge. Here's a key exchange between Justice Scalia and Solicitor General Don Verrilli:
JUSTICE SCALIA: What about what about Congress? You really think Congress is just going to sit there while while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the you know, the bankruptcy court decision? Congress adjusts, enacts a statute that that takes care of the problem. It happens all the time. Why is that not going to happen here?
GENERAL VERRILLI: Well, this Congress, Your Honor, I- I- (Laughter.)
GENERAL VERRILLI: You know, I mean, of course, theoretically of course, theoretically they could.
JUSTICE SCALIA: I-- I don't care what Congress you're talking about. If the consequences are as disastrous as you say, so many million people without without insurance and whatnot, yes, I think this Congress would act.
Verrilli offers the conventional wisdom-- that the current Republican-controlled Congress is hopelessly dysfunctional and that Republicans have been unable to agree on a fix for Obamacare--in part because there is no consensus on a substitute for Obamacare, and in part because their more radical elements will punish politicians who attempt to fix the program. Moreover, he assumes that it is vain to hope that there will be a bipartisan solution because Republicans and Democrats disagree so pointedly about Obamacare.
Scalia, however, sees things differently. He believes that when push comes to shove, Republicans will overcome their internal divisions and come up with a sensible solution that will preserve insurance coverage for millions while getting rid of the hated Obamacare. If you read the media that Scalia reads, you might well believe that this is the case.
But even if you don't agree with that view, and you don't regularly get your news from conservative media, you might well believe (or at least hope!) that Congress will respond in the face of a genuine disaster. Republicans will back down from their complete rejection of Obamacare and pass a technical fix.
But that assumes that the Republicans in Congress see the world the way that you do. Some of them may, but some of them may not. Your judgment of the likely consequences depends on other people's vision of reality.
Scalia's optimism about the consequences of holding for the petitioners is premised on the view that Congress is not really dysfunctional, and that this is an unfair portrait painted by a liberal media. People with a different view of the world will probably disagree-- Congress is broken. Or, at the very least, they have insufficient faith in the current political system to want to gamble that Congress will be able to avoid a disaster.
Competing visions of the world matter greatly in making arguments about consequences. And there many many ways that liberal and conservative elites can find ways to disagree about what is actually happening. Even if the Justices all agree on the consequences of denying subsidies in federal exchanges, they may still have very different views of the world when it comes to how the current political system works and whether Congress can be trusted to work things out. And that difference in their views of reality may be crucial to how the case comes out.