Today, the Supreme Court voted not to kill Obamacare because of a typo.
More precisely, it ruled, 6-3, that the Affordable Care Act wasn’t meant to kill itself: that a seemingly innocuous phrase (“established by the state”) should not lead to the implosion of the entire health care system, and thus should be read in context, rather than purely literalistically.
Thus, while media coverage is already calling this a “victory for the Obama administration,” it really is a victory for sensible statutory construction. Which is why the case was 6-3, and the opinion was written by Chief Justice Roberts.
Moreover, while conservative and liberal court-watchers are both remarking about the Roberts Court’s “liberalism” that read is, at best, incomplete.
First, let’s remember that in other courts, this case might never have even made it to the Supreme Court in the first place. It began as an enterprising attempt by an obscure conservative policy wonk to poke holes in Obamacare, and the phrase at issue was recently revealed to be a drafting error, cut and pasted from an earlier version.
So, while some may see the Chief Justice’s legacy as twice saving Obamacare, one could just as easily see it as twice saving the Supreme Court.
Second, and more interestingly, the King v. Burwell opinion is what real judicial conservatism—as opposed to ideological, political conservatism—looks like.
This case was not, let’s remember, a referendum on Obamacare’s merits. It was about a quirk in the literal text of the law. Could people receive tax subsidies if they bought their insurance only on a state-run exchange, or could they qualify if they bought their insurance on a federal exchange, as well?
The former reading hews literally to that phrase: “established by the state.” But it does so at the expense of the entire statute, since not extending the subsidies would most likely cause the whole system to enter a “death spiral.”
Long-established conservative canons of judicial interpretation hold that courts should read laws as if they’re meant to work—not in ways that would render them useless. Moreover, as the Chief Justice painstakingly described, there are other provisions in the ACA that only make sense if all “qualified individuals” are included, not just those in state exchanges.
And as for those four words? “The meaning of that phrase may not be as clear as it appears when read out of context,” the Chief Justice wrote.
So, on one hand, it’s a literalistic reading of one phrase. On the other, it’s resolving internal contradictions and enabling the law to function. It is not a judicial innovation to choose the latter.
Indeed, it is common sense—and conservative legal theory.
You’ll notice that the last several paragraphs have said nothing about whether it’s a good idea for the government to manipulate the health care system. That’s a political question, not a judicial one. (Whether it is constitutional was resolved in the earlier Obamacare case, NFIB v. Sebelius.) The judicial question is how statutes are to be interpreted.
In today’s polarized political environment, liberals and conservatives alike miss this point completely. The Court is seen as voting on Obamacare, voting on gay marriage, or—in today’s other major case—voting on civil rights laws. Indeed, particularly when it comes to marriage, courts get criticized for “overruling the will of the people.”
That is completely wrongheaded, and indeed, anti-democratic. Of course courts overrule the will of the people when that will is unconstitutional. That’s the whole point of judicial review. And of course courts are not casting votes on the merits of the laws they review.
(That being said, Chief Justice Roberts did spend the first part of his opinion cataloguing the state precedents to the Affordable Care Act, as if to remind political conservatives that it was originally a Republican idea. Not casting a vote is not the same as being politically oblivious.)
Notably, Justice Scalia’s dissent—while typically angry, invective, and coarse, at one point calling the ACA “SCOTUScare”—did not make some political argument for why Obamacare is a bad idea. He found fault with the majority’s theory of judicial interpretation, arguing that courts must not “repair” bad laws, but simply review them as written. That seems odd and myopic in this case—but it’s still judicial reasoning.
Certainly, one might question Justice Scalia’s motives; he is literalistic when it suits him, expansive when it doesn’t. Just look at Hobby Lobby for a case that massively extended the plain meaning of the statute, defining corporations as people. However, even if justices are politically motivated, they are at the very least bound to do the work of judicial interpretation—as Justice Scalia did here.
Not so on Fox News—or, to a lesser extent, on MSNBC. In conservative and liberal pundit-land, these decisions are mere referenda of nine people in robes. In the legal academy, this cynical view is known as “positivism”—the idea that, underneath all the rationalization, courts are just judges exercising power. It is a marginal view, as it deserves to be.
No. Just as, a few months ago, the Supreme Court expanded the social safety net for pregnant women for conservative judicial reasons, it has now left the ACA standing for the same reasons.
This decision is only “liberal” in the best way: It is part of the functioning of a small-“l” liberal democracy, subordinating one’s personal political opinions to an institution’s role in civil society. For that reason, it is conservative in the best way, as well.