June 26, 2015

King v. Burwell

Instead of me paraphrasing Damon Root and Clark Neilly -- badly -- both have good articles on King v Burwell better explaining what I meant. Here's the crux of the biscuit from Root:

Writing at The Week, conservative pundit Matt K. Lewis says "John Roberts abandoned conservatives" in King v. Burwell and abandoned "the conservative legal philosophy [he] is supposed to hold true to."

In a word, no. John Roberts may have infuriated many conservatives, but that's not the same thing as abandoning his conservative legal philosophy. In fact, when you take a closer look, you'll find that Roberts' behavior in the two Obamacare cases is quite consistent with one particular school of conservative legal thought. That school is committed to the idea of judicial deference.


Whole thing pretty good.

SCOTUS Posted by John Kranz at June 26, 2015 9:51 AM

I read "judicial deference" as meaning, Congress deserves wide latitude in crafting law to suit its purposes so the court should not change said laws for light and transient causes. Very well.

So is holding the Executive to the letter of the law a pedantic technicality because "everyone knows" what they intended, or is the Court allowing for blithering incompetence in the Legislature for failing to write the four extra words that would have conveyed its clear meaning?

Do we now have the soft bigotry of low expections of CONGRESS?

Statesmen? Hell, I'd settle for skillful scribes.

Posted by: johngalt at June 26, 2015 11:38 AM

Not endorsing it, just trying to better understand it. It has been the clarion call of the Conservative movement since Judge Bork was Verbed. I highlight it because I did it myself. "Judges shouldn't legislate from the bench!" and "Gimme another PBR -- and some wings!"

Hell yes judges should legislate! If they struck down every unconstitutional law, Congress would learn.

Posted by: jk at June 26, 2015 11:51 AM

Putting a finer point on it - to "legislate from the bench" means, to me, modifying the law not striking it out of existence. The latter is, let's see... adjudication? If this was supposed to be "judicial deference" and that means "not legislating from the bench" then they're doing it wrong. This is the second time they've REVISED the PPACA of 2010. Scalia is right... this is no longer the President's signature health care law, it is SCOTUS'.

Posted by: johngalt at June 26, 2015 12:13 PM

Scalia's book Reading Law [Review Corner] warns of overuse, but includes the Canons which are used to provide some benefit of the doubt to legislation

"Context is a primary determinant of meaning. A legal instrument typically contains many interrelated parts that make up the whole. The entirety of the document thus provides the context for each of its parts. When construing the United States Constitution in McCulloch v. Maryland,4 Chief Justice John Marshall rightly called for 'a fair construction of the whole instrument.'5 More than a century later, Justice Benjamin Cardozo echoed the point in the context of legislation: '[T]he meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view.'6

"The Supreme Court of the United States has said that statutory construction is a 'holistic endeavor,'7 and the same is true of construing any document. Many of the other principles of interpretation are derived from the whole-text canon—for example, the rules that an interpretation that furthers the document's purpose should be favored (§ 4 [presumption against ineffectiveness]), that if possible no word should be rendered superfluous (§ 26 [surplusage canon]), that a word or phrase is presumed to bear the same meaning throughout the document (§ 25 [presumption of consistent usage]), that provisions should be interpreted in a way that renders them compatible rather than contradictory (§ 27 [harmonious-reading canon]), that irreconcilably contradictory provisions should be given no effect (§ 29 [irreconcilability canon]), and that associated words bear on one another's meaning (noscitur a sociis) (§ 31 [associated-words canon])."

Scalia, Antonin; Garner, Bryan A. (2012-07-05). Scalia and Garner's Reading Law: The Interpretation of Legal Texts. Thomson West. Kindle Edition.

I'll accept from his dissent that he found this instance less than compelling. But nor can I proclaim no underpinning reason for the Chief Justice to offer yet another saving construction.

Posted by: jk at June 26, 2015 2:10 PM | What do you think? [4]