Despite a poorly drafted statute, the Fourth Circuit in King v. Burwell held that the Affordable Care Act (ACA), as interpreted by the Internal Revenue Service, allowed for subsidies to participants if they purchased the insurance on a federal, rather than, a state exchange. Then, the Supreme Court decided to review that case. There was no split in the Circuits. There is no urgency to grapple with a simple question of statutory interpretation.
While it is true that a panel of the D.C. Circuit had gone the other way, that decision was vacated pending an en banc hearing. Why then did the Supreme Court take King v. Burwell for review now? Professor Bickel, the law professor who gave us the elegant theory of “passive virtues,” would have shaken is head in stunned disbelief. Indeed, it is almost like the members of the Court are looking for a fight.
Linda Greenhouse, with whom I seldom agree, has written a long article on this subject in the New York Times. I urge you to read it. She concludes her powerful piece this way:
So this case is rich in almost every possible dimension. Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.
Like Ms. Greenhouse, I, too, am about to surrender. At the Supreme Court, currently dominated by Justices nominated by Republican Presidents, five of the Justices speak and write glowingly about judicial modesty and restraint. There is increasing evidence that this is empty rhetoric. At the Court, law has seemingly become politics by another name.
Like Ms. Greenhouse, the Court’s “activist” behavior depresses me no end. I hate admitting that I am and have been a naive dumb ass.
PS For what it is worth, I honestly don’t care whether the ACA lives or dies.