“The Supreme Court Erred Again”

My friend, Eric Hines, is one of most well-informed lay persons about the law that I have come across. I suppose that is not surprising given his wide-ranging education, and his long career as a senior Air Force officer.

Eric writes a blog, entitled A Plebe’s Site.  Eric is very conservative. He is also intellectually honest and open-minded. That said, he is a skilled debater. So, if you take him on, you best be prepared for a robust exchange.

At his blog you will find trenchant analysis of legal, economic and political issues. His most recent post, The Supreme Court Erred Again, is just such an example. In that post, Eric skillfully criticizes the Supreme Court for the ACA ruling in King v. Burwell. It is worth a read. In fact, A Plebe’s Site is always worth a read.

RGK

 

25 responses

  1. That’s a generous set of remarks.

    Thank you, Sir.

    Of course, this means that in any case in which I’m dragged before you in your court, I’ll have to recuse myself from that case in order to eliminate the conflict of interest.

    Eric Hines

  2. Eric – if I’m reading your post right–meaning if I’m ignoring the context–you seem to be saying that the Court should have deferred to the IRS, which would have been a win for the Gov’t:

    [You said: Now comes the first of Roberts’ non sequiturs]

    [Then you quoted Roberts saying: The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly.]

    [Then you said: Indeed. However, it’s irrelevant. As he admitted, the money’s availability is an economic and political question; it most assuredly is not a legal one. This is no matter for the Court to involve itself.]

    But the passage you were quoting was part of Roberts’ explanation for why the Court should decide the case itself and not defer to the IRS’s resolution. Had the Court agreed with you that “[t]his is no matter for the Court to involve itself” in, then it would have gone on to defer to the IRS.

    Of course, you could argue (and you implicitly did) that the Court should not have deferred to the IRS because the statutory language at issue is unambiguous (courts will only ever defer if there is an ambiguity).

    But then you would have to address, at least if you were responding to what Roberts wrote, why it makes no difference (and so why it creates no ambiguity) that interpreting the words “established by the State” to exclude federally created exchanges guts the whole statute, almost as if Congress never passed it to begin with.

    In other words, where do you get this higher principal from that says that the purpose of a statute is not relevant to a court’s job in interpreting the statute.

  3. Courts have been rescuing badly-drafted statutes for a quarter-millenium. What Roberts did, he had plenty of precedent for, as the purpose of interpretation is to effectuate the statute if at all possible.

  4. The two opinions by John Roberts on the ACA will go down in history as two of the worst decisions ever. On this point, Ted Cruz and I are in total agreement. And Cruz is a friend of Roberts and has argued nine cases in the Supreme Court.

  5. It’s possible I wasn’t entirely clear with my apparently unencumbered claim that This is no matter for the Court to involve itself. What I meant was that the concern that the thing involved all that money and that it affected the price of health plans (my term) was not a thing for the Court to concern itself. The Court should only concern itself with what the law said, not whether the law had this or that ancilliary, and wholly political/economic, impact. Staying within the text of the law should then have led the Court to reject the IRS’ Rule.

    But then you would have to address, at least if you were responding to what Roberts wrote, why it makes no difference (and so why it creates no ambiguity) that interpreting the words “established by the State” to exclude federally created exchanges guts the whole statute….

    Why? That striking the IRS’ Rule is wholly irrelevant to whether that would gut the law. The Rule is legitimate, or not, (stipulating that it otherwise was properly written) solely on whether the Rule was permitted by the law. More directly, as I also argued, contra Roberts, if Congress had intended for the tax credits to be available to all, it would have said so in the text of the law it passed. It did not. It expressly limited those credits–twice–to State-created (or crated, as I Freudianly wrote in my post) Exchanges. In the event, I did address that when I argued that Roberts’ concern for that–the money, for instance–wasn’t relevant to the matter, and so the premise that the law would be gutted without the IRS’ Rule also is irrelevant.

    [W]here do you get this higher principal from that says that the purpose of a statute is not relevant to a court’s job in interpreting the statute.

    I don’t. I insist that the purpose of the law was exactly what the Congress wrote, and the Court should have stayed within that. If the Congress had intended something else, it would have passed something else.

    Certainly that will lead, occasionally, to absurd rulings, like for instance the Court having to deal with…inartfully drafted…laws. But that’s what we have under our social compact. It’s not the Court’s job to protect the Congress from itself. Suppose, for example, the Court had ruled my way. The same argument could be made by the Left: “You knew what Congress meant, you should have ruled differently.” No, the Court’s role is limited to deciding first whether the law is legitimate–whether it is Constitutional–and if it is, then the Court legitimately can only apply the law as it is written, not as the Court thinks it ought to have been done, or would have been written had it been written artfully enough to suit the Court.

    Such corrections of statute are the province of the people through their elected representatives in the Congress–they’re statutory things, not legal things.

    Eric Hines

  6. Anon.,

    Interesting POV. Mine is just the opposite.

    CJ Roberts in the ACA cases was doing what Chiefs are supposed to do, and that is protect the Court as an institution when the Chief can do so without violence to his firmly held beliefs. Since these cases upheld statutes or regulations passed or authorized by Congress, CJ Roberts could easily find a rationale for affirmance because he was siding with the Peoples’ elected representatives.

    On the other hand, the gay marriage case did not require his help from an institutional point of view. He knew that the majority of Americans (particularly the relatively young) would applaud the decision and hence the Court as an institution. CJ Roberts had firmly held beliefs about discoverying “fundamental rights.” Thus, in that case he could have his cake and eat it too. That is, others on the Court would protect the institution from swimming upstream against the public opinion supportive of gay marriage, and he could stick to his firmly held beliefs in the process.

    Cj Roberts has my great respect for doing his very hard job as well or better than any Chief Justice in the past. He is a man of sophisticated judgment when it comes to the well being of the Court.

    I don’t expect you to agree. But, I thought you might be interested in my views.

    All the best.

    RGK

  7. That courts have been rescuing badly-drafted statutes for that long only demonstrates the long-standing nature of the error. It in no way legitimizes the error.

    Eric Hines

  8. Since these cases upheld statutes or regulations passed or authorized by Congress, CJ Roberts could easily find a rationale for affirmance because he was siding with the Peoples’ elected representatives.

    Then what’s the point of judicial review, if the Peoples’ elected representatives can never violate their Constitution? This is much too close to Parliamentary Supremacy. That’s fine for the Brits’ social compact, but it doesn’t work for ours.

    We the People hired a government to defend and enforce our liberties duties, and as part of that hiring, our Courts are there to help keep us on the straight and narrow. And that requires the Supreme Court to say, on occasion, “No, Peoples’ elected representatives, that thing you just did runs counter to the highest law in the land, that law that was passed by the People themselves, with an exceptionally broad, and deliberately so for the purpose, franchise. We strike it.”

    Bending over backward to avoid that necessity is what led Roberts to so badly distort things in that first ACA error: he had to “find” a tax in the ACA that Congress had explicitly considered and rejected in order to find the Individual Mandate constitutional.

    The best way to protect the Supreme Court as an institution is for the Court to rule on the law as it’s written, not as they think it would have been written had it been written better; or as Ginsburg has had it, as the Court sees fit to update to fit the times; or as Thurgood Marshall had it, that the law is irrelevant, he’ll rule as he sees fit and let the law catch up.

    Besides, the regulation in question in the present case wasn’t authorized by Congress. Or at least that’s my claim, and I’m sticking to it.

    Eric Hines

  9. There is some irony here in conservatives now calling the balls-and-strikes guy not balls-and-strike enough, but alas…

    I think you’re treating your interpretive preferences as self-evident principles.

    To me, the issue is simply, when a court interprets a statute, should or may it consider the purpose of the statute–meaning, the object of the statute, the good it was trying to promote or the bad it was trying combat–and thereby, the consequence of a potential interpretation, or not?

    You say no. To which I would ask, why?

    I don’t think it’s an answer to vaguely cite the “social compact” or to declare that “such corrections of statute are the province of the people through their elected representatives in the Congress”. That simply begs the question: why? What part of the social compact says that judges must or should disregard statutory purpose (as I’ve defined “purpose” above). Why are considerations of statutory purpose are beyond the province of the judiciary?

    You could, to be sure, make an argument for why judges should ignore the purpose of a statute. But I didn’t see any argument in the cited post.

    In contrast, Roberts had a pithy, and to me quite persuasive, argument about why purpose should not be ignored: “in every case we must respect the role of the Legislature, and take care not to undo what it has done. [Thus] [a] fair reading of legislation demands a fair understanding of the legislative plan.”

    That aside,I think you’re unfairly equating Roberts ruling for the Gov’t with Roberts endorsing the ACA. He did only the former, not the latter. He did not say the ACA was good (just as he didn’t say a day later that bans on same sex marriage were good). He simply said it was his duty as a judge to give effect, if at all possible, to the law’s purpose.

  10. Mr. Hines made a valiant effort but unfortunately for him, the S. Ct. got it right.

  11. There is some irony here in conservatives now calling the balls-and-strikes guy not balls-and-strike enough[.]

    What conservatives here are calling the guy “balls-and-strikes?” Now you’re just raising straw men. Even as a straw man, how is this even close to relevant?

    To me, the issue is simply, when a court interprets a statute, should or may it consider the purpose of the statute–meaning, the object of the statute, the good it was trying to promote or the bad it was trying combat–and thereby, the consequence of a potential interpretation, or not?

    You say no.

    Where have I said that? Perhaps you’ll quote me and walk this layman through your logic in getting from my words to your conclusion. What I have said is this: …the purpose of the law was exactly what the Congress wrote…. That’s pretty clear.

    What part of the social compact says that judges must or should disregard statutory purpose (as I’ve defined “purpose” above).

    Indeed. What part of the social compact–or of the Constitution in particular–says that judges must or should disregard statutory purpose? And yet you’re arguing for the Roberts Court doing exactly that.

    As you note, Roberts held “in every case we must respect the role of the Legislature, and take care not to undo what it has done. [Thus] [a] fair reading of legislation demands a fair understanding of the legislative plan.” And then he proceeded to do disrespect the role of the Legislature and undid what it had done. The understanding of the legislative plan is quite clear from the plan itself: the text of that plan as set out in the ACA. If the Congress had had a different plan, it would have written a different law.

    I think you’re unfairly equating Roberts ruling for the Gov’t with Roberts endorsing the ACA.

    Another straw man, even more irrelevant than your prior one. Unless you can quote me here, too, and walk me through your logic.

    Eric Hines

  12. “We are not final because we are infallible, but we are infallible only because we are final.” Justice Robert H. Jackson.

  13. [There is some irony here in conservatives now calling the balls-and-strikes guy not balls-and-strike enough[.]

    What conservatives here are calling the guy “balls-and-strikes?” Now you’re just raising straw men. Even as a straw man, how is this even close to relevant?]

    This was just a passing aside, which is why I didn’t link it to anything in particular. But as you likely know, at his confirmation hearing, Roberts famously said that his job as a judge was “to call balls and strikes”. In other words, to be an umpire, not to pitch or bat (see the title of this blog). Many conservatives heralded this and Roberts as a return to judicial restraint. Those who thought the judge-as-umpire to be an unduly simplistic notion that was offered purely for the benefit of conservative senators now get to laugh a little. One would have hoped that Roberts’ opinion here might cause said conservatives to question whether the umpire as judge is in fact silly, detached from the real world of deciding cases, but instead they seem almost uniformly to prefer calling Roberts a turncoat. I’m not saying you’re doing that; it’s just a general observation.

    [To me, the issue is simply, when a court interprets a statute, should or may it consider the purpose of the statute–meaning, the object of the statute, the good it was trying to promote or the bad it was trying combat–and thereby, the consequence of a potential interpretation, or not?

    You say no.

    Where have I said that? Perhaps you’ll quote me and walk this layman through your logic in getting from my words to your conclusion. What I have said is this: …the purpose of the law was exactly what the Congress wrote…. That’s pretty clear.]

    Here’s where you say “no”:

    “No, the Court’s role is limited to deciding first whether the law is legitimate–whether it is Constitutional–and if it is, then the Court legitimately can only apply the law as it is written, not as the Court thinks it ought to have been done, or would have been written had it been written artfully enough to suit the Court.”

    The issue we’re having is that I’m defining “purpose” as “the object of the statute.” You are defining it as something else (which we’ll come to in a minute). And you are not, saying, to be fair, that courts cannot consider purpose as you define it. But that’s not what I asked you about. You are absolutely saying that courts cannot consider purpose as I define it.

    As for your definition of purpose-i.e., “the purpose of the law was exactly what the Congress wrote”-that, to me, is relatively meaningless. Sure, on some level, Congress’s purpose can be thought of as (and is generally presumed to be) writing and passing the words it writes and passes. But on a deeper level, a level you insist on not engaging with, there is a purpose (or purposes) behind why congress wrote and passed the words that it did. And you don’t explain why courts must ignore that purpose.

    Put differently, you want to privilege, to an absolute extent, one concept of purpose over another. So I asked you why, what principle or constitutional requirement or other authority says that your concept of purpose must always win?

    [What part of the social compact says that judges must or should disregard statutory purpose (as I’ve defined “purpose” above).

    Indeed. What part of the social compact–or of the Constitution in particular–says that judges must or should disregard statutory purpose? And yet you’re arguing for the Roberts Court doing exactly that.

    As you note, Roberts held “in every case we must respect the role of the Legislature, and take care not to undo what it has done. [Thus] [a] fair reading of legislation demands a fair understanding of the legislative plan.” And then he proceeded to do disrespect the role of the Legislature and undid what it had done. The understanding of the legislative plan is quite clear from the plan itself: the text of that plan as set out in the ACA. If the Congress had had a different plan, it would have written a different law.]

    Again, you’re just begging the question of why courts should not consider the purpose of a statute as I’ve defined purpose above. To you, the purpose or “legislative plan” is simply the words that were written. But why is it not, and why cannot it be, the reason the words were written.

    [I think you’re unfairly equating Roberts ruling for the Gov’t with Roberts endorsing the ACA.

    Another straw man, even more irrelevant than your prior one. Unless you can quote me here, too, and walk me through your logic.]

    In the first full paragraph of your post you wrote of “Roberts’ guiding principles”, and suggested, to me at least, that you think his opinion was motivated by the desire to promote universal healthcare rather than his desire to give effect to congress’s enacted scheme, good or bad:

    “In these comments I’ll leave aside Roberts’ guiding principles that health plans that are independent of the risk being transferred are, somehow, insurance plans; that possession of a health plan is a universal so good it must be mandated; and that the folks who need a health plan the least—the healthy—must also be required to possess such a plan.”

  14. I suppose it’s good to have a “very conservative” voice represented here from time to time, even if it appeals to tortured logic and occasionally incoherent thinking. I find that reading the Biblical literalists is also quite entertaining.

  15. So, you are demanding that we throw out a canon of construction that has existed since before America was a nation because you don’t like the outcome?

    The Framers assumed that this canon would be applied when they wrote the Constitution. It is, like much of that “very old English law” Scalia is always on about, incorporated by reference.

    Why should we change it now?

  16. Last bit first: In these comments I’ll leave aside Roberts’ guiding principles….

    As I said, I left them aside. They weren’t central to my thesis. They don’t even indicate that Roberts thought the ACA was itself any good, only that he thought the general principles I enumerated were good ideas. As you know, there are a lot of ways to try to implement those principles; we–and Roberts–are not limited to the ACA. Roberts’ ruling plainly was not an endorsement of the ACA, per se; it was only that he thought the IRS’ Rule under that law was valid. You’re the only one dragging those left-aside principles back in.

    We are, indeed, centered on whose definition of purpose is relevant. You’ve not given any indication of why you think yours should prevail.

    Here’s why I think the one I’m using should prevail, which I also noted in my post:

    Debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body.

    That’s what this Court held in Dunlap v US. We are stuck with, and the Court should adhere to—is obligated by their several oaths of office to adhere to—the plain language of the law before them. And that plain language is quite clear.

    Notice that: it’s not my definition. It’s the Court’s. What’s meaningless is the mind reading of divination of intent.

    There’s also this, which I did not include in my post, from US v Trans-Missouri Freight Ass’n (and from which (I think) Dunlap‘s attitude toward Congressional debates stems):

    Looking simply at the history of the bill from the time it was introduced in the Senate until it was finally passed, it would be impossible to say what were the views of a majority of the members of each House in relation to the meaning of the Act. It cannot be said that a majority of both houses did not agree with Senator Hoar in his views as to the construction to be given to the Act as it passed the Senate. All that can be determined from the debates and reports is that various members had various views, and we are left to determine the meaning of this act, as we determine the meaning of other acts. from the language used therein.

    And so the Court is left with the text of the law that Congress passed as the sole determinant of Congress’ intent in passing that law.

    Eric Hines

  17. How is it an “error”? It is a rational and practical rule, which has been a foundation of our law for centuries. Why is it so wrong that it cannot be tolerated?

  18. Our compact is considerably more nuanced than that. We start with an understanding that complex legislation is hard to get perfect, and there will be times when the verbiage does not capture the intent. We work under the presumption that legislation is constitutional unless shown to be otherwise, and that Congress intended that their work not be a total nullity. Courts have been directed through canons older than our nation itself to navigate that waterway.

    The notion that it is the job of the CJ to “protect the institution” borders on the comical. It is more that the Court has lost all legitimacy (and with it, all of our courts), and CJ Roberts is trying desperately to stick fingers in the dyke. His decisions ARE overtly political, which is why the Court has lost all its legitimacy. Catch-22.

  19. “We the People hired a government to defend and enforce our liberties duties, and as part of that hiring, our Courts are there to help keep us on the straight and narrow. And that requires the Supreme Court to say, on occasion, “No, Peoples’ elected representatives, that thing you just did runs counter to the highest law in the land, that law that was passed by the People themselves, with an exceptionally broad, and deliberately so for the purpose, franchise. We strike it.””

    Is this from the lost Obergefell concurrence?

  20. It’s a foundation of English law, certainly. But when we broke with GB, we also broke with the concept of Parliamentary Supremacy. In the doing, we explicitly left the writing of law in the hands of the legislature. The rescuing that our courts do too often extends to rewriting the law to make it work–according to the courts’ view of how it should work, not the Congress’, it being the courts’ interpretation that’s necessarily being applied.

    The right answer is for the courts to apply the law as it is written, absurd result and all, and let the Congress correct the absurdity, that being solely a political decision and not a judicial one. In the alternative, send the law back to Congress as too broken, too vague, for them to do it over entirely.

    Eric Hines

  21. It’s entirely appropriate for the Supremes to be spring-loaded to assume legitimacy and that Congress didn’t intend to pass garbage. But it’s not the Supremes’ job to “fix” a badly written law: aside from the fact that they might not “fix” it in the direction that Congress intended; and aside from the premise that Congress’ intent, as prior Supremes have recognized, is entirely contained in the text of the law; the “fixing” is law-writing, and that’s not the Court’s purview.

    Regarding your second point, I’m more optimistic than you seem to be: I don’t agree that the Court has lost all legitimacy, for all its recent errors (IMNSHO). The damage done to the perception of the Court’s legitimacy can be repaired by the Court going back to dealing with the law before it as it is written and not as it ought to have been written.

    Eric Hines

  22. One last remark, a propos nothing in particular. It’s time now for me to go back to work–it’s the middle of the week…. I appreciate Judge Kopf’s hosting this conversation, and I appreciate y’all’s engagement, both here and on my blog.

    I actually do screw up and learn things from these conversations.

    Thank you all.

    Eric Hines

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